Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:
Appears in 9 contracts
Samples: Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp), Credit Agreement (Applovin Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to incur any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each caseif, secured by a Lien on after giving effect thereto, the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Total Leverage Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) no greater than or equal 6.25 to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness1.00; provided, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateralfurther, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 75,000,000 and (y) 4050% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 6 contracts
Samples: First Lien Credit Agreement (Focus Financial Partners Inc.), First Lien Credit Agreement (Focus Financial Partners Inc.), Intercreditor Agreement (Focus Financial Partners Inc.)
Limitation on Indebtedness. (a) The Borrower will not, and will not permit any of its Restricted Subsidiary to Subsidiaries to, directly or indirectly, create, incur, issue, assume, enter into any guarantee of, or otherwise become directly or indirectly liable, contingently or otherwise otherwise, for (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) Debt), and the Borrower will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiary Subsidiaries to issue any shares of Disqualified Stock orPreferred Stock; provided, in the case of Restricted Subsidiaries that are not Guarantorshowever, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), Debt) and any Restricted Subsidiary may issue shares of Disqualified Preferred Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio for the Borrower’s most recently ended four full fiscal quarters for which internal financial statements are available (or, if earlier, were required to be delivered pursuant to Section 7.1(a) or (b)) immediately preceding the date on which such additional Indebtedness is incurred or such Preferred Stock is issued would have been at least 2.00 to 1.00, determined on a pro forma basis (including a pro forma application of the Borrower net proceeds therefrom), as if the additional Indebtedness had been incurred or the Preferred Stock had been issued, as the case may be, and the Restricted Subsidiaries, after giving effect to application of proceeds therefrom had occurred at the incurrence beginning of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investmentfour-quarter period; provided further that the aggregate principal amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred and the liquidation preference of Preferred Stock that may be issued pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) 100.0 million at the any one time of such incurrence. The foregoing limitations will not apply to:outstanding.
Appears in 5 contracts
Samples: Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.), Credit Agreement (Warner Music Group Corp.)
Limitation on Indebtedness. The Borrower (a) On and after the Issue Date, (x) the Company will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to incur any Indebtedness (including Acquired IndebtednessDebt); (y) and the Borrower Company will not issue any shares of Disqualified Stock not, and will not permit any of its Restricted Subsidiaries to, issue any Disqualified Stock (including Acquired Disqualified Stock); and (z) the Company will not permit any of its Restricted Subsidiaries that are not Subsidiary Guarantors to issue any shares of Disqualified Preferred Stock or(including Acquired Preferred Stock); provided, in the case of Restricted Subsidiaries that are not Guarantorshowever, preferred stock; provided that the Borrower Company and the Subsidiary Guarantors may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionDebt) or issue shares of Disqualified Stock, and any Restricted the Company and the Subsidiary Guarantors may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1including Acquired Disqualified Stock) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which financial statements have been filed with the SEC pursuant to Section 4.04 immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock is issued would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the Borrower and net proceeds therefrom), as if the Restricted Subsidiaries, after giving effect to additional Indebtedness had been incurred or the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderPreferred Stock had been issued, as the Fixed Charge Coverage Ratio of case may be, at the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence beginning of such four-quarter period, with any letters of credit and bankers' acceptances being deemed to have an aggregate principal amount of Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the maximum amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceavailable thereunder. The foregoing limitations provisions will not apply to:
Appears in 5 contracts
Samples: Supplemental Indenture (Lyondell Chemical Co), Supplemental Indenture (Lyondell Chemical Co), Supplemental Indenture (Equistar Chemicals Lp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that (A) the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted SubsidiariesSubsidiaries is at least 2.00:1.00 or (B) the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness), if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, calculated on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater less than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment5.75:1.00; provided further provided, further, that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Sections 10.1(l)(ii) and (n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 150 million and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 4 contracts
Samples: First Lien Credit Agreement (BrightSpring Health Services, Inc.), First Lien Credit Agreement (BrightSpring Health Services, Inc.), Joinder Agreement (BrightSpring Health Services, Inc.)
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 2.00 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 30,000,000 and (y) 4030.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 4 contracts
Samples: Joinder and Amendment Agreement (National Vision Holdings, Inc.), Credit Agreement (National Vision Holdings, Inc.), First Lien Credit Agreement (National Vision Holdings, Inc.)
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that Holdings, the Borrower Borrowers and their Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment5.00:1.00, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on the Collateral on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment 5.50:1.00 or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower Holdings and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment 1.75:1.00 and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is (i) unsecured or (ii) is secured by assets that are do not become Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment 6.50:1.00 or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower Holdings and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.75:1.00; provided further that the outstanding amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under (i) Section 10.1(n)(x) or (ii) clause (c) of the definition of Permitted Other Indebtedness by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 550,000,000 and (y) 4050.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 4 contracts
Samples: Credit Agreement (GoDaddy Inc.), Credit Agreement (GoDaddy Inc.), Credit Agreement (GoDaddy Inc.)
Limitation on Indebtedness. The CGI Borrower will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the CGI Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Borrowers or Guarantors, preferred stockCapital Stock; provided that the CGI Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isCapital Stock, in each case, secured by a Lien on an aggregate outstanding amount at the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, time of incurrence or that is unsecured to the extent that issuance not greater than (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 20,000,000 and (y) 4040.0% of Consolidated EBITDA of CGI Borrower for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceincurrence or issuance, in each case plus (2) unlimited additional amounts if, after giving effect thereto, CGI Borrower shall on a consolidated basis have an Interest Coverage Ratio of not less than 2.00:1.00 on a Pro Forma Basis at the time of incurrence or issuance; provided, further, that the amount of Indebtedness (including Acquired Indebtedness), Disqualified Stock and preferred Capital Stock that may be incurred and issued pursuant to the foregoing together with any amounts incurred under Section 11.1(m)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed an aggregate amount equal to at any one time outstanding the greater of (x) $15,000,000 and (y) 30.0% of Consolidated EBITDA of CGI Borrower for the most recently ended Test Period (calculated on a Pro Forma Basis). The foregoing limitations will not apply to:
Appears in 4 contracts
Samples: Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.), Credit Agreement (Canada Goose Holdings Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that (A) the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted SubsidiariesSubsidiaries is at least 2.00:1.00 or (B) the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness), if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, calculated on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater less than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment5.75:1.00; provided further provided, further, that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Sections 10.1(l)(ii) and (n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 180 million and (y) 4048.00% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 3 contracts
Samples: Lien Credit Agreement (BrightSpring Health Services, Inc.), Lien Credit Agreement (BrightSpring Health Services, Inc.), Second Lien Credit Agreement (BrightSpring Health Services, Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to to, create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock not, and will not permit any Restricted Subsidiary to to, issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockCapital Stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isCapital Stock, in each case, secured by a Lien on an aggregate outstanding principal amount at the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, time of incurrence or that is unsecured to the extent that issuance not greater than (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 20,000,000 and (y) 4037.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceincurrence or issuance, in each case plus (2) additional amounts if, after giving effect thereto, for the most recently ended Test Period (on a Pro Forma Basis) at the time of incurrence or issuance, the Interest Coverage Ratio is not less than 2.00 to 1.00; provided that the amount of Indebtedness (including Acquired Indebtedness), Disqualified Stock and preferred Capital Stock that may be incurred and issued pursuant to the foregoing together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed an aggregate amount equal to at any one time outstanding the greater of (x) $27,000,000 and (y) 50.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis). Notwithstanding the foregoing or anything else to the contrary in this Section 10.1 (including the immediately succeeding paragraph), solely during the Limited Incurrence Period, the Borrower may only incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and the Restricted Subsidiaries may only incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of preferred Capital Stock under the first paragraph of this Section 10.1, together with any amounts incurred (including Acquired Indebtedness) or issued under Sections 10.1(d), (l)(ii), (n) and (aa), in an aggregate principal amount at any time outstanding during such Limited Incurrence Period not to exceed $80,000,000. 129 The foregoing limitations will not apply to:
Appears in 3 contracts
Samples: Intercreditor Agreement (Canada Goose Holdings Inc.), Intercreditor Agreement (Canada Goose Holdings Inc.), Intercreditor Agreement (Canada Goose Holdings Inc.)
Limitation on Indebtedness. The Borrower aggregate principal amount of Tenant Creditor Obligations (including, without limitation, (i) the amount of loans and the face amount of letters of credit constituting ABL Lender Obligations or Term Loan Lender Obligations and the principal amount of Indenture Obligations, as the case may be, but excluding (ii) the aggregate principal amount of Secured Swap Contracts and Bank Product Debt, in each case of clauses (i) and (ii), incurred or guaranteed by the Tenants), whether unsecured or secured by the Tenant Loan Collateral or otherwise will notnot exceed the Cap Amount. Except as set forth in the immediately following sentence, each Agent and the Indenture Trustee, as applicable, hereby agrees that the Tenants will have no liability to such Agent or the Indenture Trustee in excess of the Cap Amount, and will not permit each Agent and the Indenture Trustee hereby waives any Restricted Subsidiary claim against any Tenant, and releases any Lien in any property of Tenant securing, any amount in excess of the Cap Amount (other than in respect of any liabilities in respect of indemnity payments to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect the extent directly attributable to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that isTenant, in each case, secured by a Lien on in respect of the Collateral that is pari passu with the Lien securing the Lender Obligations, secured by the Term Loan Documents, the ABL Documents or the transactions relating thereto (excluding for the avoidance of doubt, liabilities related to reimbursement of expenses in connection with amending, negotiating preparing or administering any Term Loan Documents or ABL Documents)). For the avoidance of doubt, the Cap Amount will not operate to limit interest (except as a Lien on result of restricting capitalization thereof), fees, premiums, expenses and indemnity obligations (other than as a result of indemnities resulting from the Collateral that is junior failure to pay the principal amount of Tenant Creditor Obligations and the face amount of letters of credit constituting ABL Lender Obligations) relating to the Lien securing aggregate principal amount of Tenant Creditor Obligations and letters of credit that do not exceed the ObligationsCap Amount. For the avoidance of doubt, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries Cap Amount (including for the purposes of such calculation Section 9.9(b)) shall not operate to limit the amount of Creditor Obligations or any Disqualified Stock other indebtedness incurred or shares of preferred stock that is secured guaranteed by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect any party to the Loan Documents or Indenture on or after the date hereof, whether pursuant to the Loan Documents, the Indenture or otherwise, other than the Tenants; provided such amount of Creditor Obligations or other indebtedness incurred or guaranteed by any Tenants, the Guarantors or any Consolidated Subsidiary (as such term is defined in the Master Lease) thereof on or after the date hereof and permitted to be incurred or guaranteed hereunder shall not, at the time of incurrence of such Indebtedness and the use of proceeds thereof, exceed an amount equal to (x) $50,000,000 plus (y) an unlimited amount so long as on a Pro Forma Basis would not exceed 4.50:1.00 or (Bas such term is defined in the Master Lease) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to such incurrence and the consummation of any transactions related thereto, the Consolidated Guarantor Leverage Ratio (as such term is defined in the Master Lease) does not exceed 6.25:1.00, and the Tenants shall deliver a certificate to the Landlord and each Agent setting forth such calculation and a senior officer of the Tenant shall certify compliance therewith (for the avoidance of doubt, the threshold set forth in this proviso is an incurrence test and not a maintenance test). The limitations on the incurrence of indebtedness set forth in the immediately preceding proviso shall not apply to any refinancing or replacement of indebtedness outstanding on the Closing Date or any indebtedness originally incurred in compliance with the terms hereof so long as the aggregate principal amount of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 refinancing or (II) replacement indebtedness does not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes aggregate principal amount of such calculation replaced or refinanced indebtedness, plus any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligationsaccrued, unpaid interest, premiums and penalties (if any), after giving effect to the incurrence letter of credit reimbursement obligations, fees and expenses and provision for cash collateralization of any outstanding undrawn letters of credit, and fees, expenses, original issue discount and upfront fees incurred in connection with such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 refinancing or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:replacement.
Appears in 3 contracts
Samples: Intercreditor Agreement (Ardent Health Partners, LLC), Relative Rights Agreement (Ardent Health Partners, LLC), Term Loan Credit Agreement (Ardent Health Partners, LLC)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createCreate, incur, issue, assume, guarantee assume or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect suffer to exist any Indebtedness (including Acquired Indebtedness) and of the Borrower will not issue or any shares of Disqualified Stock and will not permit any its Restricted Subsidiaries, except Indebtedness of the Borrower or such Restricted Subsidiary to issue any shares of Disqualified Stock orincurred: (a) under the Loan Documents, (b) in the case form of Restricted Subsidiaries reverse repurchase transactions, Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that are constitute “Indebtedness” entered into primarily for investment purposes which have the effect of borrowing; provided, the notional value of all such reverse repurchase transactions, Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that constitute “Indebtedness” entered into primarily for investment purposes which have the effect of borrowing shall not Guarantorsexceed $50 million at any time; and provided further that reverse repurchase transactions, preferred stock; provided Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that do not constitute “Indebtedness” shall be marked to market on a daily basis with any assets or liabilities, as applicable, resulting therefor added or deducted, as applicable, from Adjusted Total Assets and thereby reflected in the Asset Coverage ratio, (c) pursuant to the Note Purchase Agreement, (d) any additional unsecured Indebtedness that the Borrower may incur issue from time to time provided that the Asset Coverage Ratio is greater than 350% at the time of issue taking into account such issuance, and no Default or Event of Default is then existing or would be caused thereby and Borrower has certified the same to Lenders and Agent, and provided further that the net proceeds (after payment of premium, fees and expenses) of such issuances not used to refinance then existing unsecured indebtedness shall be used to repay the Loans and other amounts due under this Agreement until paid in full, provided such 350% condition precedent and use of proceeds requirement may be waived with Required Lenders’ consent, or (e) secured Indebtedness the aggregate principal amount of which is not outstanding for more than 60 days and which does not exceed five percent (5%) of the Borrower’s Total Assets at the time of incurrence of such Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a “Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionSecured Indebtedness”), issue shares of Disqualified Stock and issue shares of preferred stock that is; and, in each case, secured which is not otherwise prohibited by a Lien on law, is in the Collateral that ordinary course of business, and is pari passu with not in contravention of the Lien securing Borrower’s Prospectus and in the Obligationscase of 6.2(a), secured by a Lien on the Collateral that (c), (d) and (e) is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio reflected properly as Senior Securities representing Indebtedness of the Borrower and in the Restricted Subsidiaries (including for calculation of the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect Asset Coverage Ratio. Notwithstanding anything to the incurrence contrary contained in this Agreement, no Indebtedness of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred Unrestricted Subsidiaries shall be recourse to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (Kayne Anderson Energy Infrastructure Fund, Inc.), Credit Agreement (Kayne Anderson Energy Infrastructure Fund, Inc.)
Limitation on Indebtedness. The Borrower will not, and Guarantor will not permit any Restricted Subsidiary to create, incur, issueassume or permit to exist any Indebtedness, assumeother than (i) this Guaranty, guarantee (ii) unsecured Indebtedness in respect of the Guarantor Notes in an aggregate principal amount at maturity not to exceed $446,000,000 (and which resulted in gross cash proceeds not to exceed $258,265,220), (iii) Indebtedness arising from the honoring by a bank or otherwise become liableother financial institution of a check, contingently draft or otherwise similar instrument inadvertently (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, except in the case of Restricted Subsidiaries that are not Guarantorsdaylight overdrafts) drawn against insufficient funds in the ordinary course of business so long as such Indebtedness is extinguished within three Business Days of the incurrence thereof, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired iv) unsecured Indebtedness incurred in connection withwith repurchases of its Capital Stock from employees, officers, directors or consultants of the Guarantor or its Subsidiaries upon their ceasing to be employees, officers, directors or consultants of the Guarantor or any such Subsidiary, as the case may be, or upon such Person's death or disability (provided that the aggregate principal amount of such repurchases funded with Indebtedness does not exceed $7,500,000 in contemplation ofthe aggregate outstanding at any time), (v) unsecured Indebtedness owing to its Subsidiaries, as evidenced by notes in form and substance similar to Intercompany Notes, (vi) unsecured Indebtedness in respect of guarantees of any permitted Indebtedness of its Subsidiaries, (vii) unsecured Indebtedness in respect of Permitted Seller Notes and Qualify- EXHIBIT 10.6 ing Subordinated Debt (provided that the aggregate principal amount of Permitted Seller Notes issued, when aggregated with the aggregate principal amount of Indebtedness assumed or acquired pursuant to clause (l) of Section 7.2.2 of the Credit Agreement, does not exceed $10,000,000 in the aggregate with respect to Permitted Seller Notes issued by Superholdco, Holdings and each Borrower (as such amount may be increased through interest that is capitalized or paid-in-kind); and (viii) unsecured Indebtedness in a Permitted Acquisition) or issue shares of Disqualified Stock, and principal amount at any Restricted Subsidiary may incur Indebtedness (including Acquired time outstanding not to exceed $7,500,000 in the aggregate with all Indebtedness incurred pursuant to this clause (viii) and clause (v) of Section 7.2.2 of the Credit Agreement; provided that any such Indebtedness referred to in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that clause (iv) above is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior subordinated to the Lien securing Obligations on terms no less favorable to the ObligationsSecured Parties than those set forth on Exhibit J to the Credit Agreement; provided however that in the case of any guaranty of any Indebtedness referred to in clause (vi) above, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock guaranteed Indebtedness is secured by a Lien on a pari passu basis with the Liens on the Collateral securing subordinated to the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of guaranty thereof by the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect Guarantor shall be subordinated to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect Obligations to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investmentsame extent; provided further that the amount of no Indebtedness otherwise permitted by clause (vii) (other than Acquired Indebtedness), Disqualified Stock Permitted Seller Notes) or (viii) shall be assumed or otherwise incurred if a Default has occurred and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:is then continuing or would result therefrom.
Appears in 3 contracts
Samples: Superholdco Guaranty (Associated Materials Inc), Superholdco Guaranty (AMH Holdings, Inc.), Superholdco Guaranty (AMH Holdings, Inc.)
Limitation on Indebtedness. The Borrower will notNo Transaction Party (other than ILFC) may incur, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liableliable for or with respect to, or become responsible for, the payment of, contingently or otherwise (collectivelyotherwise, “incur” and collectivelywhether present or future, an “incurrence”) with respect to any Indebtedness other than (including Acquired Indebtednessi) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantorsthe Obligors, preferred stockIndebtedness under the Loan Documents; (ii) in the case of Parent Holdco, Junior Lien Debt; (iii) Indebtedness in respect of guarantees by any Borrower Party of any obligation of any Transaction Party (other than of ILFC or Parent Holdco); (iv) Leases and obligations to Lessees, trustees and others under the Leases, trust agreements and other documents related thereto, including any Indebtedness owed to any Lessee under any such agreement or the Lease with respect to maintenance contributions, redelivery condition adjustment payments or any other obligation of any Subsidiary Holdco, Intermediate Lessee or Owner Subsidiary to a Lessee; (v) Indebtedness of any Transaction Party owed to ILFC and Pledged Debt; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection withthat, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of no such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be permitted unless (x) not exceed 6.25:1.00 or such Indebtedness has been subordinated to the Obligations and the Junior Lien Obligations pursuant to the terms of the Intercreditor Agreement, (y) not exceed in the Consolidated Senior Secured case of any Pledged Debt Collateral, such Pledged Debt Collateral has been pledged to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio Collateral Agent for the benefit of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred Secured Parties pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed Security Agreement and the greater of (x) $72,000,000 Collateral Agent has a first priority perfected security interest in such Pledged Debt Collateral and (yz) 40% in the case of Consolidated EBITDA for any Pledged Debt Collateral, such Pledged Debt Collateral is evidenced by an Instrument which has been delivered and indorsed to the most recently ended Test Period Collateral Agent; (calculated on vi) Indebtedness required in connection with repossession of an Aircraft or any Engine; and (vii) Indebtedness in favor of the issuer of a Pro Forma Basis) at surety, letter of credit or similar instrument to be obtained by any Subsidiary Holdco, Intermediate Lessee or Owner Subsidiary in connection with the time repossession or detention of such incurrence. The foregoing limitations will not apply to:an Aircraft or other enforcement action under a Lease.
Appears in 3 contracts
Samples: Aircraft Lease Agreement (ILFC Holdings, Inc.), Aircraft Lease Agreement (International Lease Finance Corp), Aircraft Lease Agreement (International Lease Finance Corp)
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness2.00 to 1.00; provided, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderfurther, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso foregoing, together with any amounts incurred under Section 10.1(n)(x), by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 85,000,000 and (y) 403.75% of Consolidated EBITDA Total Assets for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 3 contracts
Samples: Credit Agreement (PRA Health Sciences, Inc.), Credit Agreement (PRA Health Sciences, Inc.), Credit Agreement (PRA Health Sciences, Inc.)
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 2.00 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 35,000,000 and (y) 4030.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 2 contracts
Samples: Credit Agreement (National Vision Holdings, Inc.), Credit Agreement (National Vision Holdings, Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createCreate, incur, issue, assume, guarantee assume or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect suffer to exist any Indebtedness (including Acquired Indebtedness) and of the Borrower will not issue or any shares of Disqualified Stock and will not permit any its Restricted Subsidiaries, except Indebtedness of the Borrower or such Restricted Subsidiary to issue any shares of Disqualified Stock orincurred: (a) under the Loan Documents, (b) in the case form of Restricted Subsidiaries reverse repurchase transactions, Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that are constitute “Indebtedness” entered into primarily for investment purposes which have the effect of borrowing, provided that the notional value of all such reverse repurchase transactions, Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that constitute “Indebtedness” entered into primarily for investment purposes which have the effect of borrowing shall not Guarantorsexceed $50 million at any time; and provided further that reverse repurchase transactions, preferred stock; provided Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that do not constitute “Indebtedness” shall be marked to market on a daily basis with any assets or liabilities, as applicable, resulting therefor added or deducted, as applicable, from Adjusted Total Assets and thereby reflected in the Asset Coverage ratio, (c) pursuant to the Note Purchase Agreement, (d) any additional unsecured Indebtedness that the Borrower may incur issue from time to time provided that the Asset Coverage Ratio is greater than 350% at the time of issue taking into account such issuance, and no Default or Event of Default is then existing or would be caused thereby and Borrower has certified the same to the Lender, and provided further that the net proceeds (after payment of premium, fees and expenses) of such issuances not used to refinance then existing unsecured indebtedness shall be used to repay the Loans and other amounts due under this Agreement until paid in full, provided such 350% condition precedent and use of proceeds requirement may be waived with the Lender’s consent, or (e) secured Indebtedness the aggregate principal amount of which is not outstanding for more than 60 days and which does not exceed five percent (5%) of the Borrower’s Total Assets at the time of incurrence of such Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a “Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionSecured Indebtedness”), issue shares of Disqualified Stock and issue shares of preferred stock that is; and, in each case, secured which is not otherwise prohibited by a Lien on law, is in the Collateral that ordinary course of business, and is pari passu with not in contravention of the Lien securing Borrower’s Prospectus and in the Obligationscase of Section 6.2(a), secured by a Lien on the Collateral that (c), (d) and (e) is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio reflected properly as Senior Securities representing Indebtedness of the Borrower and in the Restricted Subsidiaries (including for calculation of the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect Asset Coverage Ratio. Notwithstanding anything to the incurrence contrary contained in this Agreement, no Indebtedness of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred Unrestricted Subsidiaries shall be recourse to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:.
Appears in 2 contracts
Samples: Loan Agreement (Kayne Anderson Energy Infrastructure Fund, Inc.), Loan Agreement
Limitation on Indebtedness. The Borrower (a) Neither the Company nor the Issuer will, nor will not, and will not the Company or the Issuer permit any Restricted Subsidiary to createto, incurIncur, issuedirectly or indirectly, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and ), none of the Borrower will not issue any shares of Disqualified Stock and will not permit Company, the Issuer or any Restricted Subsidiary to will issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified StockEquity Interests, and any no Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligationsnot a Subsidiary Guarantor will issue any Preferred Stock; provided, secured by a Lien on the Collateral that is junior to the Lien securing the Obligationshowever, or that is unsecured to the extent that (1) if such Indebtednessthe Company, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower Issuer and the Restricted Subsidiaries (including for will be entitled to Incur Indebtedness or issue Disqualified Equity Interests or Preferred Stock if, on the purposes date of such calculation any Disqualified Stock Incurrence or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), issuance and after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, thereto on a Pro Forma Basis would not exceed 4.50:1.00 or pro forma basis, the Consolidated Coverage Ratio exceeds 2.00 to 1.00 (B) if such provided that the aggregate amount of Indebtedness, Disqualified Equity Interests and Preferred Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred Incurred or issued, as applicable, pursuant to the foregoing proviso by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of (xi) $72,000,000 1.0 billion and (yii) 406.0% of Consolidated EBITDA for Total Assets at any one time outstanding (together with all Refinancing Indebtedness Incurred by Restricted Subsidiaries that are not Subsidiary Guarantors then outstanding and Incurred to refinance any of the most recently ended Test Period foregoing pursuant to Section 4.4(a)(2)) and (calculated on a Pro Forma Basis2) at the time Refinancing Indebtedness in respect of Indebtedness Incurred or assumed pursuant to Section 4.4(a)(1) (any such incurrence. The foregoing limitations will not apply to:Indebtedness Incurred pursuant to Section 4.4(a)(1) being herein referred to as “Coverage Indebtedness”).
Appears in 2 contracts
Samples: Indenture (Alcoa Upstream Corp), Indenture (Alcoa Inc.)
Limitation on Indebtedness. The Borrower will notNo Guarantor may, and will may not permit any Restricted Subsidiary to createof its Pledged SPEs or Intermediate Lessees to, incur, create, issue, assume, guarantee or otherwise become liableliable for or with respect to, or become responsible for, the payment of, contingently or otherwise (collectivelyotherwise, “incur” and collectivelywhether present or future, an “incurrence”) with respect to any Indebtedness other than (including Acquired Indebtednessi) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not the Guarantors, preferred stock; provided that Indebtedness in respect of the Borrower may incur Guarantee hereunder, (ii) leases and obligations to lessees, trustees and others under the leases, trust agreements and other documents related thereto, including any Indebtedness (including Acquired Indebtedness incurred in connection withowed to any lessee under any such agreement or the lease with respect to maintenance contributions, redelivery condition adjustment payments or in contemplation ofany other obligation of any Guarantor, Pledged SPE or Intermediate Lessee to a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that islessee, in each casecase that is incurred in accordance with Leasing Company Practice; (iii) Indebtedness of any Guarantor, secured by a Lien Pledged SPE or Intermediate Lessee owed to the Company or any of its Subsidiaries; provided that, no such Indebtedness shall be permitted unless (x) such Indebtedness has been subordinated to the Guaranteed Obligations on the Collateral that is pari passu with the Lien securing the Obligationsterms set forth herein or, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtednessterms are not applicable, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on terms reasonably acceptable to the Collateral securing the ObligationsAgent, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% in the case of Consolidated EBITDA for any Pledged Debt Collateral, the most recently ended Test Period Collateral Agent has a first priority perfected security interest in such Pledged Debt Collateral, subject to Permitted Collateral Liens, and such Pledged Debt Collateral is, or when issued, will be, evidenced by an instrument which has been delivered and indorsed to the Collateral Agent; (calculated on iv) Indebtedness required in connection with repossession of an Aircraft or any engine related thereto; and (v) Indebtedness in favor of the issuer of a Pro Forma Basis) at surety, letter of credit or similar instrument to be obtained by any Guarantor, Pledged SPE or Intermediate Lessee in connection with the time repossession or detention of such incurrence. The foregoing limitations will not apply to:an Aircraft or other enforcement action under a lease.
Appears in 2 contracts
Samples: Security and Guarantee Agreement (International Lease Finance Corp), Security and Guarantee Agreement (International Lease Finance Corp)
Limitation on Indebtedness. The Borrower will Lessee shall not, and will shall not permit any of the Restricted Subsidiary to Subsidiaries to, directly or indirectly, create, incur, issue, assume, suffer to exist, guarantee or otherwise become liable, contingently directly or otherwise (collectively, “incur” and collectively, an “incurrence”) indirectly liable with respect to any Indebtedness (including Acquired IndebtednessDebt) or any Synthetic Leases and the Borrower will Lessee shall not issue any shares of Disqualified Stock Interests and will shall not permit any of the Restricted Subsidiary Subsidiaries to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided provided, however, that the Borrower Lessee and any Restricted Subsidiary of Lessee may incur create, incur, issue, assume, suffer to exist, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionDebt) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured Synthetic Lease to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock the Leverage Ratio is secured by a Lien on a pari passu basis maintained in accordance with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the ObligationsSection 5.12(a), both before and after giving effect to the incurrence of such Indebtedness or such Synthetic Lease, as the case may be, and, provided, further, that (x) the aggregate principal amount of (1) all Capitalized Lease Obligations and the use all Synthetic Lease Obligations (other than Capitalized Lease Obligations and Synthetic Lease Obligations in respect of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (BGrowth-Related Capital Expenditures) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower Lessee and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if all Indebtedness for which Lessee and any Restricted Subsidiary of Lessee become liable in connection with Acquisitions of retail propane businesses in favor of the sellers of such Indebtedness, Disqualified Stock or shares of preferred stock is businesses and secured by a any Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio any property of the Borrower and the Restricted Subsidiaries (including for the purposes Lessee or any of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness shall not exceed $65,000,000 at any one time outstanding, and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than the principal amount of any Indebtedness for which Lessee or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares any Restricted Subsidiary of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio Lessee becomes liable in connection with Acquisitions of retail propane businesses in favor of the Borrower and the Restricted Subsidiaries (including for the purposes sellers of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors businesses shall not exceed the greater fair market value of (x) $72,000,000 the assets so acquired, and (yz) 40% the aggregate amount of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) Indebtedness of Lessee and its Subsidiaries through one or more SPEs in connection with Accounts Receivable Securitizations shall not exceed $60,000,000 at the any one time of such incurrence. The foregoing limitations will not apply to:outstanding.
Appears in 2 contracts
Samples: Agreement (Ferrellgas Partners Finance Corp), Agreement (Ferrellgas Partners Finance Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investmentthereto, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be Subsidiaries is at least 2.00:1.00 or (IIB) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the its Restricted SubsidiariesSubsidiaries may Incur Indebtedness (including Acquired Indebtedness), if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceshall be less than or equal to 2.25:1.00 (Indebtedness Incurred pursuant to this paragraph, “Ratio Debt”). The foregoing limitations will not apply to:
Appears in 2 contracts
Samples: Credit Agreement (Academy Sports & Outdoors, Inc.), Credit Agreement (Academy Sports & Outdoors, Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower and its Restricted Subsidiaries may incur unsecured Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investmentstock; provided further that that, only if the amount Payment Conditions are not satisfied, the final maturity of any such unsecured Indebtedness (including Acquired Indebtedness) shall not occur, and no such unsecured Indebtedness (including Acquired Indebtedness) shall require mandatory commitment reductions (other than Acquired Indebtedness)customary amortization payments) prior to, Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceLatest Maturity Date. The foregoing limitations will not apply to:
Appears in 2 contracts
Samples: Abl Credit Agreement (Academy Sports & Outdoors, Inc.), Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Borrowers or Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 2.00 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 175,000,000 and (y) 4035.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 2 contracts
Samples: Credit Agreement (Gardner Denver Holdings, Inc.), Credit Agreement (Gardner Denver Holdings, Inc.)
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 2.00 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 45,000,000 and (y) 4030% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 2 contracts
Samples: First Lien Credit Agreement (BrightView Holdings, Inc.), Lien Credit Agreement (BrightView Holdings, Inc.)
Limitation on Indebtedness. The Parent Borrower will not, and will not permit any Restricted Subsidiary to to, create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) ), and the Parent Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not GuarantorsGuarantors or Borrowers, preferred stockstock that are not otherwise pledged as Collateral (the “Non-Guarantor Subsidiary Preferred Stock”); provided that the Parent Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and and/or any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, Indebtedness) or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, or Non-Guarantor Subsidiary Preferred Stock in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior an aggregate amount up to the Lien securing the ObligationsMaximum Incremental Facilities Amount (any such obligations that are secured, or that is unsecured to the extent that (1) if “Secured Ratio Debt” and any such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets obligations that are not CollateralIndebtedness or not secured, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA “Unsecured Ratio of the Borrower Debt”, and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecuredcollectively, “Ratio Debt”), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that (i) the amount of Indebtedness (other than Acquired Indebtedness), ) and Disqualified Stock and preferred stock Non-Guarantor Subsidiary Preferred Stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 67,000,000 and (y) 4035.0% of Consolidated EBITDA for the most recently ended Test Period Period; (calculated on ii) subject to the Inside Maturity Exceptions and other than in the case of Acquired Indebtedness, Ratio Debt shall not mature earlier than the Initial Term Loan Maturity Date or have a Pro Forma Basis) weighted average life to maturity shorter than the remaining weighted life to maturity of the Initial Term Loans (in each case as in effect at the time of incurrence or establishment of the commitment thereof) and (iii) if such incurrenceRatio Debt is Indebtedness secured by Collateral, the Intercreditor Agreement Requirement shall apply. The foregoing limitations will not apply to:
Appears in 2 contracts
Samples: Credit Agreement (Mirion Technologies, Inc.), Credit Agreement (Mirion Technologies, Inc.)
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 1.75 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 54,000,000 and (y) 4036% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 2 contracts
Samples: Lien Credit Agreement (BrightView Holdings, Inc.), Credit Agreement (BrightView Holdings, Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createCreate, incur, issue, assume, guarantee assume or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect suffer to exist any Indebtedness (including Acquired Indebtedness) and of the Borrower will not issue or any shares of Disqualified Stock and will not permit any its Restricted Subsidiaries, except Indebtedness of the Borrower or such Restricted Subsidiary to issue any shares of Disqualified Stock orincurred: (a) under the Loan Documents, (b) in the case form of Restricted Subsidiaries reverse repurchase transactions, Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that are constitute “Indebtedness” entered into primarily for investment purposes which have the effect of borrowing, provided that the notional value of all reverse repurchase transactions, Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that constitute “Indebtedness” entered into primarily for investment purposes which have the effect of borrowing shall not Guarantorsexceed $50 million at any time; and provided further that reverse repurchase transactions, preferred stock; provided Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that do not constitute “Indebtedness” shall be marked to market on a daily basis with any assets or liabilities, as applicable, resulting therefor added or deducted, as applicable, from Adjusted Total Assets and thereby reflected in the Asset Coverage ratio, (c) pursuant to the Note Purchase Agreement, (d) any additional unsecured Indebtedness that the Borrower may incur issue from time to time provided that the Asset Coverage Ratio is greater than 350% at the time of issue taking into account such issuance, and no Default or Event of Default is then existing or would be caused thereby and Borrower has certified the same to Lenders and Agent, and provided further that the net proceeds (after payment of premium, fees and expenses) of such issuances not used to refinance then existing unsecured indebtedness shall be used to repay the Loans and other amounts due under this Agreement until paid in full, provided such 350% condition precedent and use of proceeds requirement may be waived with Required Lenders’ consent, or (e) secured Indebtedness the aggregate principal amount of which is not outstanding for more than 60 days and which does not exceed five percent (5%) of the Borrower’s Total Assets at the time of incurrence of such Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a “Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionSecured Indebtedness”), issue shares of Disqualified Stock and issue shares of preferred stock that is; and, in each case, secured which is not otherwise prohibited by a Lien on law, is in the Collateral that ordinary course of business, and is pari passu with not in contravention of the Lien securing Borrower’s Prospectus and in the Obligationscase of 6.2(a), secured by a Lien on the Collateral that (c), (d) and (e) is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio reflected properly as Senior Securities representing Indebtedness of the Borrower and in the Restricted Subsidiaries (including for calculation of the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect Asset Coverage Ratio. Notwithstanding anything to the incurrence contrary contained in this Agreement, no Indebtedness of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred Unrestricted Subsidiaries shall be recourse to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 1.75 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 45,000,000 and (y) 4030% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 2 contracts
Samples: Credit Agreement (BrightView Holdings, Inc.), Credit Agreement (BrightView Holdings, Inc.)
Limitation on Indebtedness. The Borrower Borrowers will not, and will not permit any Restricted Subsidiary to to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Borrowers will not issue any shares of Disqualified Stock Equity Interests and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, Equity Interests or preferred stock; provided that the Borrower Borrowers may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified StockEquity Interests, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock Equity Interests and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Lead Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 2.00 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock Equity Interests and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors Credit Parties shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) 200,000,000 at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createto, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to incur any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to ), issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, issue any preferred stock; provided that the Borrower and its Restricted Subsidiaries may incur any of the following: (i) Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, is secured by a Lien Liens on the Collateral that is rank pari passu with the Lien Liens on the Collateral securing the ObligationsCredit Facilities, so long as after giving effect to the incurrence of such amount the Borrower would be in compliance on a Pro Forma Basis with respect to the last day of the most recently ended Test Period with a First Lien Leverage Ratio of no greater than the greater of (x) 4.75 to 1.00 and (y) if such Indebtedness is incurred to finance a Permitted Acquisition or other permitted Investment (other than Specified Investments), the First Lien Leverage Ratio immediately prior such Permitted Acquisition or other permitted Investment (other than Specified Investments), as applicable, (ii) Indebtedness that is secured by a Lien Liens on the Collateral that is rank junior to the Lien Liens on the Collateral securing the ObligationsCredit Facilities, so long as after giving effect to the incurrence of such amount the Borrower would be in compliance on a Pro Forma Basis with respect to the last day of the most recently ended Test Period with a Total Secured Leverage Ratio of no greater than the greater of (x) 6.00 to 1.00 and (y) if such Indebtedness is incurred to finance a Permitted Acquisition or other permitted Investment (other than Specified Investments), the Total Secured Leverage Ratio immediately prior to such 169 Permitted Acquisition or other permitted Investment (other than Specified Investments), as applicable, or (iii) any Indebtedness secured by assets that do not constitute Collateral, any unsecured Indebtedness or Disqualified Stock incurred or issued by the Borrower or any Restricted Subsidiary, and any preferred stock issued by any Restricted Subsidiary that is unsecured not a Credit Party, as applicable, so long as after giving effect to the extent that incurrence of such amount the Borrower would be in compliance on a Pro Forma Basis with respect to the last day of the most recently ended Test Period with either (1A) a Total Leverage Ratio of no greater than the greater of (x) 6.00 to 1.00 and (y) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligationsstock, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)as applicable, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate finance a Permitted Acquisition or other permitted Investment not prohibited hereunder(other than Specified Investments), the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Total Leverage Ratio immediately prior to such Permitted Acquisition or other Investmentpermitted Investment (other than Specified Investments), as applicable, or (2B) an Interest Coverage Ratio of no less than the lesser of (x) 2.00 to 1.00 and (y) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligationsstock, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations)as applicable, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate finance a Permitted Acquisition or other permitted Investment not prohibited hereunder(other than Specified Investments), the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Interest Coverage Ratio immediately prior to such Permitted Acquisition or other permitted Investment and (3) if such Indebtednessother than Specified Investments), Disqualified Stock or shares of preferred stock is unsecured or secured by assets as applicable; provided, further, that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso foregoing, together with any amounts incurred under Section 10.1(n)(x), by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 87,500,000 and (y) 4050% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any one time outstanding and (II) to the time of extent applicable, any such incurrenceIndebtedness incurred pursuant to the foregoing shall comply with the Additional Debt Requirements. The foregoing limitations will not apply to:
Appears in 1 contract
Samples: First Lien Credit Agreement (HireRight GIS Group Holdings, LLC)
Limitation on Indebtedness. The Borrower Company will not, and will not permit any Restricted Subsidiary to of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee guarantee, or otherwise become liableor remain directly or indirectly liable with respect to, contingently any Indebtedness; provided however, that this Section 406 shall not limit the incurrence by the Company or otherwise any Subsidiary of (collectivelyi) the Credit Facility Indebtedness; (ii) Indebtedness incurred hereunder; and (iii) to the extent permitted under the Credit Agreement and the Canadian Credit Agreement (a) Indebtedness secured by Liens permitted under Section 412, “incur” and collectively(b) Indebtedness (including, without limitation, guarantees) existing on the date hereof but not the extension, renewal or refunding thereof, (c) Indebtedness to trade creditors incurred in the ordinary course of business, (d) guarantees constituting the endorsement of negotiable instruments for deposit or collection in the ordinary course of business, (e) Purchase Money Indebtedness to finance capital expenditures in an “incurrence”) aggregate amount outstanding at any time not to exceed $5,000,000 provided that any Lien granted with respect to such Indebtedness is permitted by Section 412(e) hereof, (f) guarantees by the Company of Indebtedness of any Subsidiary permitted under this Section 406 and guarantees by any Subsidiary of Indebtedness of the Company or another Subsidiary permitted under this Section 406, (including Acquired Indebtednessg) other unsecured Indebtedness in the ordinary course of business not to exceed $3,000,000 at any one time outstanding, (h) interest rate and currency protection agreements occurring in the ordinary course of business, (i) Indebtedness to finance insurance premiums and (j) other unsecured Indebtedness but only if at the time such Indebtedness is incurred, (1) either (x) the Interest Rate on the Securities has been permanently reduced to 12% per annum pursuant to Section 301(a) and the Borrower will not issue Company has irrevocably waived its right to pay any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, interest in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionSecondary Securities as otherwise permitted by Section 301(a) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien y) the Interest Rate on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior Securities has been permanently reduced to the Lien securing the Obligations, or that is unsecured 10% per annum pursuant to the extent that Section 301(b); (12) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and Indebtedness, the use ratio of proceeds thereofConsolidated EBITDA to Consolidated Interest Expense for any four fiscal quarter period ending (x) on or prior to September 30, on a Pro Forma Basis would not exceed 4.50:1.00 2001, exceeds 2.25 to 1.00 or (By) if at any time thereafter, exceeds 2.75 to 1.00; (3) such IndebtednessIndebtedness does not mature or become subject to any mandatory prepayment or amortization of principal prior to July 2, Disqualified Stock or shares of preferred stock is incurred 2004; and (4) the Company shall have delivered to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock Trustee an Officers' Certificate stating that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness satisfies each of the requirements set forth in this Section 406(j) and a Compliance Certificate demonstrating in reasonable detail compliance at the use end of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, applicable accounting period with the restrictions contained clause (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligationsthis Section 406(j), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:.
Appears in 1 contract
Samples: Senior Secured Note Indenture (SLM International Inc /De)
Limitation on Indebtedness. The Borrower Company will not, and will not permit any Restricted Subsidiary to createto, incur, issuecreate, contract, assume, have outstanding, guarantee or otherwise become liablebe or become, contingently directly or otherwise indirectly, liable in respect of, any Indebtedness, except (collectivelyi) Indebtedness arising out of this Loan Agreement, “incur” and collectively, an “incurrence”(ii) with respect to any Indebtedness (including Acquired the Subordinated Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that (a) the Borrower may incur Indebtedness (including Acquired Subordinated Indebtedness incurred in connection withwith the Additional Sub-Debt shall not exceed $350,000,000, or in contemplation of, a Permitted Acquisition(b) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired the interest rate payable on the Subordinated Indebtedness incurred in connection withwith the Additional Sub-Debt shall not exceed eleven and one-half percent (11 1/2%) per annum, or and (c) the maturity date of the Subordinated Indebtedness incurred in contemplation ofconnection with the Additional Sub-Debt shall not be sooner than the Maturity Date, a (iii) Indebtedness, excluding Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each caseMargin Debt, secured by a Lien on the Collateral Permitted Liens, (iv) Permitted Margin Debt, (v) current liabilities for taxes and assessments incurred in the ordinary course of business and other liabilities incurred in the ordinary course of business which are currently being contested in good faith and adequate reserves therefor are being maintained according to Generally Accepted Accounting Principles, (vi) current amounts payable or accrued of other claims (other than for borrowed funds or purchase money obligations) incurred in the ordinary course of business provided that all such liabilities, accounts and claims shall be promptly paid and discharged when due or in conformity with customary trade terms, unless such liabilities are currently being contested in good faith and adequate reserves therefor are being maintained according to Generally Accepted Accounting Principles, (vii) Indebtedness of Company and the Subsidiaries not otherwise included in the preceding subclauses of this Section 9.01 that is pari passu with reflected in the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares audited consolidated financial statement of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower Company and the Restricted Subsidiaries (including for the purposes as of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)December 31, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment1999, (2viii) if such IndebtednessIndebtedness evidenced by the Construction Loan, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations(ix) Indebtedness under any Hedge Agreements that are permitted according to Section 9.18 hereof, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) Indebtedness evidenced by any Interest Swap Agreement, provided such agreement is entered into for business purposes respecting any then existing Indebtedness of Company, (xi) Indebtedness evidenced by unsecured and undrawn letters of credit issued for the benefit of Company and its Subsidiaries not to exceed 6.25:1.00 or an aggregate face amount of $5,000,000 at any one time outstanding, (yxii) such other Indebtedness of Company and the Subsidiaries (in the aggregate) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio exceeding $15,000,000 at any one time outstanding, exclusive of the Borrower any Indebtedness between Company and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3xiii) if such IndebtednessIndebtedness of any Subsidiary to Company, Disqualified Stock or shares Indebtedness of preferred stock is unsecured or secured by assets that are not Collateralany Subsidiary to another Subsidiary, either (A) either (I) the Consolidated Total Debt and Indebtedness of Company to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:Subsidiary.
Appears in 1 contract
Limitation on Indebtedness. The Borrower Borrowers will not, and will not permit any Restricted Subsidiary to to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Borrowers will not issue any shares of Disqualified Stock Equity Interests and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, Equity Interests or preferred stock; provided that the Borrower Borrowers may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified StockEquity Interests, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock Equity Interests and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Lead Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 2.00 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock Equity Interests and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors Credit Parties pursuant to the foregoing, together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Credit Parties, shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) 200,000,000 at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will Borrowers shall not, and will shall not suffer or permit any Restricted Subsidiary to of their Subsidiaries to, create, incur, issue, assume, guarantee suffer to exist, or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) remain directly or indirectly liable with respect to, any Indebtedness, except: Indebtedness incurred pursuant to any this Agreement; Indebtedness existing on the Closing Date, as set forth in Schedule 7.5, as the same may be extended, renewed, refunded or refinanced; provided, however, that after giving effect to such extension, renewal, refunding or refinancing, (including Acquired Indebtednessi) the principal amount thereof is not increased, and (ii) neither the tenor nor the remaining average life thereof is reduced; purchase money liens and Capital Leases; endorsements for collection or deposit in the Ordinary Course of Business; accounts payable to trade creditors for goods and services and current operating liabilities (not the result of the borrowing of money) incurred in the Ordinary Course of Business of Borrowers and their Subsidiaries in accordance with customary terms and paid within the specified time, unless contested in good faith by appropriate proceedings and reserved for in accordance with GAAP; Indebtedness consisting of Contingent Obligations permitted pursuant to Section 7.8; Indebtedness secured by Liens permitted by subsections 7.1(f), (h), (i), (j), (k) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired m). Indebtedness incurred in connection withwith leases permitted pursuant to Sections 7.11; Indebtedness of any Borrower to any of their Wholly-Owned Subsidiaries or any Subsidiary of any Borrower to any Borrower; Additional Debt, or in contemplation ofsubject to Section 2.3(b); Anschutz Sub Debt, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired subject to Section 2.3(b); Indebtedness incurred in connection withwith the Exit Facility, or in contemplation of, a Permitted Acquisitionsubject to Section 2.3(b), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, ; Indebtedness secured by a Lien on Liens permitted by Section 7.1(s); Swap Contracts entered into with respect to obligations incurred or existing in the Collateral that is pari passu Ordinary Course of Business; Contingent Obligations comprised of endorsements for collection or deposit in the Ordinary Course of Business and accounts payable to suppliers incurred in the Ordinary Course of Business and paid in the Ordinary Course of Business; Contingent Obligations incurred in connection with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, various employee benefit plans or that is unsecured collective bargaining agreements to the extent not otherwise prohibited and subject to any restrictions in this Agreement or any other Loan Document; Indebtedness contemplated by Sections 7.4 and 7.6; and Indebtedness of any Person that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by becomes a Lien on a pari passu basis Subsidiary after the Confirmation Date in accordance with the Liens on terms of Section 7.4 which Indebtedness is existing at the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of time such calculation any Disqualified Stock or shares of preferred stock that is secured by Person becomes a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness Subsidiary (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be Indebtedness incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time solely in contemplation of such incurrence. The foregoing limitations will not apply to:Person Becoming a Subsidiary of Borrowers).
Appears in 1 contract
Samples: Term Credit Agreement (United Artists Theatre Circuit Inc /Md/)
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower and its Restricted Subsidiaries may incur unsecured Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investmentstock; provided further that that, only if the amount Payment Conditions are not satisfied, the final maturity of any such unsecured Indebtedness (including Acquired Indebtedness) shall not occur, and no such unsecured Indebtedness (including Acquired Indebtedness) shall require mandatory commitment reductions (other than Acquired Indebtedness)customary amortization payments) prior to, Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceLatest Maturity Date. The foregoing limitations will not apply to:: (a) Indebtedness arising under the Credit Documents; (b) (i) Indebtedness represented by the Term Loan Facility and any guarantee thereof in an aggregate principal amount (together with any Refinancing Indebtedness in respect thereof and all accrued interest, fees and expenses) not to exceed the sum of (A) $400,000,000 and (B) the Maximum Incremental -122-
Appears in 1 contract
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to to, any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur unsecured Indebtedness (including unsecured Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur unsecured Indebtedness (including unsecured Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or Effect thereto (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (Ii) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater no less than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment 3.00:1.00 and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (Iii) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, be no greater than the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to 0.25:1.00 lower than the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the maximum Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiariespermitted under Section 10.7; provided, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereoffurther, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired unsecured Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 150,000,000 and (y) 4030.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower Borrowers will not, and will not permit any of their respective Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Borrowers will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Borrowers and their respective Restricted Subsidiaries may incur unsecured Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investmentstock; provided further that that, only if the amount Payment Conditions are not satisfied, the final maturity of any such unsecured Indebtedness (including Acquired Indebtedness) shall not occur, and no such unsecured Indebtedness (including Acquired Indebtedness) shall require mandatory commitment reductions (other than Acquired Indebtedness)customary amortization payments) prior to, Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceLatest Maturity Date. The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Credit Agreement (Bountiful Co)
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that Holdings, the Borrower and their Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock is equal to or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 less than 6.50:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower Holdings and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, Subsidiaries would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 2.00 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 160,000,000 and (y) 4030.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createto, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to incur any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to ), issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, issue any preferred stock; provided that the Borrower and its Restricted Subsidiaries may incur any of the following: (i) Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, is secured by a Lien Liens on the Collateral that is rank pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the ObligationsCredit Facilities, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), so long as after giving effect to the incurrence of such Indebtedness and amount the use of proceeds thereof, Borrower would be in compliance on a Pro Forma Basis would not exceed 4.50:1.00 or with respect to the last day of the most recently ended Test Period with a First Lien Leverage Ratio of no greater than the greater of (Bx) 4.75 to 1.00 and (y) if such Indebtedness, Disqualified Stock or shares of preferred stock Indebtedness is incurred to consummate finance a Permitted Acquisition or other permitted Investment not prohibited hereunder(other than Specified Investments), the Consolidated First Lien Secured Debt to Consolidated EBITDA Leverage Ratio of the Borrower and the Restricted Subsidiaries immediately prior such Permitted Acquisition or 158 other permitted Investment (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock other than Specified Investments), as applicable, (ii) Indebtedness that is secured by a Lien Liens on a pari passu basis with the Collateral that rank junior to the Liens on the Collateral securing the Obligations)Credit Facilities, so long as after giving effect to the incurrence of such Indebtedness and amount the use of proceeds thereof, Borrower would be in compliance on a Pro Forma Basis shall with respect to the last day of the most recently ended Test Period with a Total Secured Leverage Ratio of no greater than the greater of (Ix) not exceed 4.50:1.00 6.00 to 1.00 and (y) if such Indebtedness is incurred to finance a Permitted Acquisition or other permitted Investment (II) not exceed other than Specified Investments), the Consolidated First Lien Total Secured Debt to Consolidated EBITDA Leverage Ratio immediately prior to such Permitted Acquisition or other Investmentpermitted Investment (other than Specified Investments), as applicable, or (2iii) any Indebtedness secured by assets that do not constitute Collateral, any unsecured Indebtedness or Disqualified Stock incurred or issued by the Borrower or any Restricted Subsidiary, and any preferred stock issued by any Restricted Subsidiary that is not a Credit Party, as applicable, so long as after giving effect to the incurrence of such amount the Borrower would be in compliance on a Pro Forma Basis with respect to the last day of the most recently ended Test Period with either (A) a Total Leverage Ratio of no greater than the greater of (x) 6.00 to 1.00 and (y) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligationsstock, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations)as applicable, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate finance a Permitted Acquisition or other permitted Investment not prohibited hereunder(other than Specified Investments), the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Total Leverage Ratio immediately prior to such Permitted Acquisition or other permitted Investment (other than Specified Investments), as applicable, or (B) either (I) the Fixed Charge an Interest Coverage Ratio of no less than the Borrower lesser of (x) 2.00 to 1.00 and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (IIy) if such Indebtedness, Disqualified Stock or shares of preferred stock stock, as applicable, is incurred to consummate finance a Permitted Acquisition or other permitted Investment not prohibited hereunder(other than Specified Investments), the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Interest Coverage Ratio immediately prior to such Permitted Acquisition or other permitted Investment and (3) if such Indebtednessother than Specified Investments), Disqualified Stock or shares of preferred stock is unsecured or secured by assets as applicable; provided, further, that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso foregoing, together with any amounts incurred under Section 10.1(n)(x), by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 87,500,000 and (y) 4050% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any one time outstanding and (II) to the time of extent applicable, any such incurrenceIndebtedness incurred pursuant to the foregoing shall comply with the Additional Debt Requirements. The foregoing limitations will not apply to:
Appears in 1 contract
Samples: First Lien Credit Agreement (HireRight Holdings Corp)
Limitation on Indebtedness. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of its Restricted Subsidiaries that are not Guarantorsto, preferred stockIncur any Indebtedness; provided that the Borrower Company may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified StockIncur Indebtedness, and any Restricted Subsidiary may incur Indebtedness (including Incur Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence Incurrence of such Indebtedness and the use receipt and application of the proceeds thereoftherefrom, the Consolidated Leverage Ratio would be less than or equal to 5.75 to 1 for Indebtedness Incurred prior to December 15, 1999, and 5.25 to 1 for Indebtedness Incurred on a Pro Forma Basis would or after December 15, 1999. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time in an aggregate principal amount not to exceed 4.50:1.00 the amount of the commitments under the New Credit Facility on the Closing Date, less any amount of Indebtedness permanently repaid as provided under Section 4.11 (ii) Indebtedness (A) to the Company evidenced by an unsubordinated promissory note or (B) if to any of its Restricted Subsidiaries; provided that any event which results in any such Indebtedness, Disqualified Stock Restricted Subsidiary ceasing to be a Restricted Subsidiary or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence subsequent transfer of such Indebtedness and (other than to the use Company or another Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds thereofof which are used to refinance or refund, on a Pro Forma Basis shall then outstanding Indebtedness, other than Indebtedness Incurred under clause (I) not exceed 4.50:1.00 i), (ii), (iv), or (IIvi) of this paragraph, and any refinancings thereof in an amount not to exceed the Consolidated First Lien Secured Debt amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition refinance or other Investmentrefund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (2iii) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes, (IB) in case the Consolidated Senior Secured Debt Indebtedness to Consolidated EBITDA Ratio be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes and (C) such new Indebtedness, determined as of the Borrower date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this clause (iii); (iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (including other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary of the Company for the purposes purpose of financing such calculation acquisition), in a principal amount not to exceed the gross proceeds actually received by the Company or any Disqualified Stock or shares Restricted Subsidiary in connection with such disposition; and (v) Indebtedness of preferred stock that is secured by a Lien on a junior basis the Company, to the Liens on extent the Collateral securing the Obligations), after giving effect net proceeds thereof are promptly (A) used to the incurrence purchase Notes tendered in an Offer to Purchase made as a result of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment Change in Control or (B) either (I) deposited to defease the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment Notes as set forth in Section 8.03 and (3vi) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured Indebtedness Incurred by assets that are any Restricted Subsidiary in an amount not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation exceed $10 million at any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the one time of such incurrence. The foregoing limitations will not apply to:outstanding.
Appears in 1 contract
Samples: Supplemental Indenture (Lodgenet Entertainment Corp)
Limitation on Indebtedness. and Issuance of Preferred ---------------------------------------------------- Stock. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to of its Subsidiaries to, ----- directly or indirectly, create, incur, issue, assume, guarantee guaranty or otherwise become liable, contingently directly or otherwise indirectly liable with respect to (collectively, “"incur” and collectively, an “incurrence”") with respect to any ----- Indebtedness (including Acquired IndebtednessDebt) and the Borrower Company will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary of its Subsidiaries to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided provided, however, that the Borrower Company may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and any of its Subsidiaries may issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the such issuance or incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderpro forma basis, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater sum of (x) $72,000,000 Indebtedness of the Company and its Subsidiaries, on a consolidated basis, (y) 40% the liquidation value of Consolidated outstanding preferred stock of Subsidiaries and (z) the aggregate amount payable by the Company and its Subsidiaries, on a consolidated basis, upon redemption of Disqualified Stock to the extent such amount is not included in the preceding clause (y), shall be less than the product of Annualized Pro Forma EBITDA for the most recently ended Test Period (calculated latest fiscal quarter for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued multiplied by 7.0, determined on a Pro Forma Basis) pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred, or the Disqualified Stock or preferred stock had been issued, as the case may be, at the time beginning of such incurrence. The foregoing limitations will not apply to:quarter.
Appears in 1 contract
Samples: NTL Inc /De/
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) ), and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockstock that are not otherwise pledged as Collateral (the “Non-Guarantor Subsidiary Preferred Stock”); provided that the Borrower may, and may permit any Restricted Subsidiary to, incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur if, after giving effect thereto, (x) in the case of Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien Ratio, on a pari passu basis with the Liens on the Collateral securing the Obligations), Pro Forma Basis immediately after giving effect to the such incurrence of such Indebtedness and the use application of proceeds thereof, is equal to or less than 3.00:1.00 (or if incurred in connection with an acquisition, merger, consolidation or Investment, the Consolidated First Lien Debt to Consolidated EBITDA Ratio on a Pro Forma Basis would not exceed 4.50:1.00 or the greater of (BI) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such acquisition, merger, consolidation or Investment and (II) 3.00:1.00) (the Indebtedness under this clause (x), “First Lien Ratio Debt”), (y) in the case of Indebtedness that is secured by the Collateral on a junior basis to the Obligations, if the Consolidated Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma Basis immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 3.75:1.00 (or if incurred in connection with an acquisition, merger, consolidation or Investment, the Consolidated Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall would not exceed the greater of (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other InvestmentInvestment and (II) 3.75:1.00) (the Indebtedness under this clause (y), “Junior Secured Ratio Debt” and, together with First Lien Ratio Debt, “Secured Ratio Debt”) and (2z) if such Indebtedness, Disqualified Stock in the case of Indebtedness that is unsecured or shares of preferred stock is not secured by a Lien on a junior priority basis with the Liens lien on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) if the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereofRatio, on a Pro Forma Basis would not exceed 6.25:1.00 immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 4.50:1.00 (II) or if such Indebtednessincurred in connection with an acquisition, Disqualified Stock merger, consolidation or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderInvestment, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) would not exceed 6.25:1.00 or the greater of (yI) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness4.50:1.00) (Indebtedness under this clause (z), Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder“Unsecured Ratio Debt” and, together with the Secured Ratio Debt, the Fixed Charge Coverage “Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other InvestmentDebt”); provided further that (i) the amount of Indebtedness (other than Acquired Indebtedness), ) and Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 30,000,000 and (y) 4017.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis); (ii) at Ratio Debt shall not mature earlier than Latest Term Loan Maturity Date hereunder or have a weighted average life to maturity shorter than the time Term Loans; (iii) if such Ratio Debt is borrowed or issued by any Credit Party, it shall not be guaranteed by any Person that is not a Credit Party; (iv) (x) in the case of subsequent issuances of First Lien Ratio Debt, the representative for the holders of such incurrenceIndebtedness shall have become a party to the First Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement in accordance with the terms thereof, and (y) in the case of Junior Secured Ratio Debt, the Collateral Agent, the Administrative Agent and the representative of the holders of such Junior Secured Ratio Debt shall have entered into a Second Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement; or in each case, otherwise be subject to an Acceptable Intercreditor Agreement and each of the Administrative Agent and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured Parties any intercreditor agreement contemplated by this clause; (v) in the case of Ratio Debt incurred by a Credit Party, other than for covenants applicable only to periods after the then Latest Term Loan Maturity Date, such Indebtedness shall have covenants that are either (w) reasonably acceptable to the Administrative Agent, (X) substantially similar to the material terms of the Initial Term Loans, (Y) on then market terms (as reasonably determined by the Borrower) or (Z) when taken as a whole, no more restrictive (as determined by the Borrower in good faith) to the Borrower and its Subsidiaries, taken as a whole, than those applicable to the Initial Term Loans; it being understood and agreed that such Indebtedness may be incurred (and shall be deemed acceptable to the Administrative Agent) if such more restrictive covenant is added (only for the period prior to the then Latest Term Loan Maturity Date) for the benefit of the Initial Term Loans; provided that the addition of such more restrictive covenant shall not require the consent of the Administrative Agent or any other Secured Party (and may be implemented with only the Borrower and the lenders providing such Indebtedness) and (vi) in the case of First Lien Ratio Debt (other than revolving Indebtedness), such Ratio Debt shall be subject to the MFN Provisions. 127 The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Credit Agreement (Skillsoft Corp.)
Limitation on Indebtedness. The Borrower Guarantor will not, and will not permit any Restricted Subsidiary to createof its Subsidiaries to, directly or indirectly, incur, issuecreate, assume, guarantee or otherwise in any other manner become liabledirectly or indirectly liable or responsible for the payment of, contingently any Indebtedness (including any Acquired Indebtedness), other than Permitted Indebtedness, unless at the time of such event (a) (i) any such Indebtedness (other than Senior Indebtedness of the Guarantor and Senior Indebtedness of the Issuer) has no sinking fund or otherwise amortization payment date or final maturity date prior to the Stated Maturity of the Notes and (collectivelyii) in the case of Indebtedness subordinated in right of payment to the Notes or the Guarantees thereof, “incur” the instrument evidencing such Indebtedness shall include subordination provisions substantially similar to those set forth in Articles Thirteen and collectivelyFourteen subordinating such Indebtedness to the Notes and the Guarantees, an “incurrence”) as the case may be, to the same extent as if the Notes were Senior Indebtedness of the Issuer and the Guarantees were Senior Indebtedness of the Guarantor, in each case, with respect to such Indebtedness and (b) after giving effect thereto and to any acquisition being financed through the incurrence of such Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligationspro forma basis, either (i) the ratio expressed as a percentage of (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio Indebtedness of the Borrower Guarantor and its Restricted Subsidiaries to (B) the sum of (1) the Oil and Gas Reserve Estimate with respect to the Guarantor and the Restricted Subsidiaries plus (including for 2) the value of the Guarantor's direct or indirect percentage ownership in publicly-held Subsidiaries (other than its Restricted Subsidiaries) engaged in oil and gas exploration, development, production or transportation and, without duplication, the Special Subsidiaries, in each case based upon the Average Quoted Price of the common stock of such Subsidiaries or Special Subsidiaries, shall not be greater than 40% or (ii) the ratio expressed as a percentage of (A) the Indebtedness of the Guarantor and its Restricted Subsidiaries to (B) the sum of (1) the Indebtedness of the Guarantor and its Restricted Subsidiaries plus (2) the product of the number of outstanding shares of the Guarantor's Capital Stock as of the date of determination multiplied by the Average Quoted Price of such Capital Stock plus (3) the product of the numberof outstanding shares of the Issuer's Capital Stock (other than any shares held by the Guarantor or any Subsidiary) as of the date of determination multiplied by the Average Quoted Price of such Capital Stock, shall not be greater than 25%. For purposes of such calculation any Disqualified this calculation, (i) a Subsidiary shall be considered publicly-held if there is a Quoted Price available for its Capital Stock or shares of preferred stock that is secured by a Lien on a pari passu basis and (ii) the Oil and Gas Reserve Estimate shall include, in connection with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereofan acquisition, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) pro forma basis the Oil and Gas Reserve Estimate, if such Indebtednessany, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderany acquired Person and shall be determined as of the end of the fiscal year of the Guarantor and, if applicable, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio acquired Person, most recently concluded if then available, but if not then available, the end of the Borrower previous fiscal year of the Guarantor and, if applicable, the acquired Person; provided, however, that the Guarantor may, at its option, make such calculation utilizing a more recent Oil and Gas Reserve Estimate in lieu of the Restricted Subsidiaries Oil and Gas Reserve Estimate referred to in the preceding clause if (including for a) such estimate is prepared, to the purposes extent of at least 85% of the quantities of proven oil and gas reserves set forth in such estimate (which shall be determined on the basis that six thousand cubic feet of gas equal one barrel of oil), by a nationally recognized independent petroleum engineer, (b) such Oil and Gas Reserve Estimate is determined on a basis consistent with the estimate prepared at fiscal year end, except that the oil and gas prices and currency prices utilized therein shall be as of the date of such calculation any Disqualified Stock or shares of preferred stock more recent estimate and (c) an officer authorized by the Guarantor delivers to the Trustee a certificate to the effect that is secured by a Lien on a pari passu basis such estimate has been prepared in accordance with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence requirements of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:Section 3.6.
Appears in 1 contract
Limitation on Indebtedness. The CGI Borrower will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “"incur” " and collectively, an “"incurrence”") with respect to any Indebtedness (including Acquired Indebtedness) and the CGI Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Borrowers or Guarantors, preferred stockCapital Stock; provided that the CGI Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isCapital Stock, in each case, secured by a Lien on an aggregate outstanding amount at the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, time of incurrence or that is unsecured to the extent that issuance not greater than (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 105,000,000 and (y) 4040.0% of Consolidated EBITDA of CGI Borrower for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceincurrence or issuance, in each case plus (2) unlimited additional amounts if, after giving effect thereto, CGI Borrower shall on a consolidated basis have an Interest Coverage Ratio of not less than 2.00:1.00 on a Pro Forma Basis at the time of incurrence or issuance; provided, further, that the amount of Indebtedness (including Acquired Indebtedness), Disqualified Stock and preferred Capital Stock that may be incurred and issued pursuant to the foregoing together with any amounts incurred under Section 11.1(m)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed an aggregate amount equal to at any one time outstanding the greater of (x) $80,000,000 and (y) 30.0% of Consolidated EBITDA of CGI Borrower for the most recently ended Test Period (calculated on a Pro Forma Basis). The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any other Restricted Subsidiary to to, create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any other Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that each of the Borrower and the Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified StockStock or, and any in the case of Restricted Subsidiary Subsidiaries, may incur Indebtedness (including Acquired Indebtedness incurred in connection with, with or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock stock, that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or unsecured or secured by a Lien on assets that is unsecured do not become Collateral to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 3.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 3.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on the Collateral on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 4.25:1.00 or (IIB) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 4.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or is secured by assets that are do not become Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecuredunsecured or is secured by assets that do not become Collateral), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 4.75:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 4.75:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted SubsidiariesSubsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured or is secured by assets that do not become Collateral), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors Credit Parties shall not exceed the greater of (x) $72,000,000 91,250,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiary to Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise otherwise, with respect to (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) Debt), and the Borrower Issuer will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiary Subsidiaries to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided provided, however, that the Borrower Issuer may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionDebt) or issue shares of Disqualified Stock, Stock and any its wholly owned Restricted Subsidiary Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection withDebt) or issue preferred stock, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of for the Borrower and Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the Restricted Subsidiaries, after giving effect to the incurrence of date on which such additional Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 is incurred or (II) if such Indebtedness, Disqualified Stock or shares of such preferred stock is incurred issued, as the case may be, would have been at least 2.0 to consummate 1.0, determined on a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio pro forma basis (including a pro forma application of the Borrower and net proceeds therefrom), as if the Restricted Subsidiaries, after giving effect to additional Indebtedness had been incurred or the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of the preferred stock is unsecured or secured by assets that are not Collateralhad been issued, either (A) either (I) as the Consolidated Total Debt to Consolidated EBITDA Ratio of case may be, at the Borrower and the Restricted Subsidiaries (including for the purposes beginning of such calculation any Disqualified Stock or shares of preferred stock that is unsecured)four-quarter period; provided, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereoffurther, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the maximum aggregate principal amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred by any Non- Guarantor Restricted Subsidiaries pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors this paragraph and any Permitted Refinancing Indebtedness in respect thereof shall not exceed the greater of (x) $72,000,000 15.0 million and (y) 4025% of Consolidated EBITDA of the Issuer and its Restricted Subsidiaries for the most recently ended Test Period four fiscal quarters for which internal financial statements are available (calculated on a Pro Forma Basis) at any Indebtedness incurred pursuant to the time of such incurrence. The foregoing limitations will not apply to:provisions described in this paragraph being herein referred to as “Ratio Indebtedness”).
Appears in 1 contract
Samples: Passu Intercreditor Agreement (CPI Card Group Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise suffer to exist any Indebtedness, except: (collectivelya) Indebtedness arising under the Credit Documents, “incur” including pursuant to Sections 2.14 and collectively, an “incurrence”2.15 hereof and any Credit Agreement Refinancing Indebtedness; (b) with respect to any Indebtedness of (including Acquired Indebtednessi) and the Borrower will not issue or any shares of Disqualified Stock and will not permit Guarantor owing to the Borrower or any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockSubsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Guarantor shall (x) be evidenced by and subject to the Borrower may incur Indebtedness subordination terms of the Intercompany Note or (including Acquired Indebtedness y) if incurred after the Closing Date, be subject to subordination terms substantially identical to the subordination terms set forth in connection with, Exhibit O within 60 days of incurrence (or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisitionsuch later date as the Administrative Agent shall reasonably agree), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent permitted by Applicable Law and not giving rise to material adverse tax consequences, (ii) any Restricted Subsidiary that is not a Guarantor owing to any other Restricted Subsidiary that is not a Guarantor and (1iii) if to the extent permitted by Section 10.5, any Restricted Subsidiary that is not a Guarantor owing to the Borrower or any Guarantor; (c) (i) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims) and (ii) Indebtedness supported by Letters of Credit in an amount not to exceed the Stated Amount of such IndebtednessLetters of Credit; (d) Guarantee Obligations incurred by (i) any Restricted Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiary that is permitted to be incurred under this Agreement; (e) Guarantee Obligations incurred in the ordinary course of business in respect of obligations to suppliers, Disqualified Stock customers, franchisees, lessors, licensees, sublicensees or shares distribution partners; (f) (i) Indebtedness the proceeds of preferred stock is secured by a Lien on a pari passu basis with which are used to finance the Liens on the Collateral securing the Obligationsacquisition, either lease, construction, repair, replacement, expansion or improvement of fixed or capital assets or otherwise issued or incurred in respect of Capital Expenditures; provided that (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 is issued or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:incurred
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) ), and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockstock that are not otherwise pledged as Collateral (the “Non-Guarantor Subsidiary Preferred Stock”); provided that the Borrower may, and may permit any Restricted Subsidiary to, incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur if, after giving effect thereto, (x) in the case of Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien Ratio, on a pari passu basis with the Liens on the Collateral securing the Obligations), Pro Forma Basis immediately after giving effect to the such incurrence of such Indebtedness and the use application of proceeds thereof, is equal to or less than 3.00:1.00 (or if incurred in connection with an acquisition, merger, consolidation or Investment, the Consolidated First Lien Debt to Consolidated EBITDA Ratio on a Pro Forma Basis would not exceed 4.50:1.00 or the greater of (BI) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such acquisition, merger, consolidation or Investment and (II) 3.00:1.00) (the Indebtedness under this clause (x), “First Lien Ratio Debt”), (y) in the case of Indebtedness that is secured by the Collateral on a junior basis to the Obligations, if the Consolidated Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma Basis immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 3.75:1.00 (or if incurred in connection with an acquisition, merger, consolidation or Investment, the Consolidated Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall would not exceed the greater of (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other InvestmentInvestment and (II) 3.75:1.00) (the Indebtedness under this clause (y), “Junior Secured Ratio Debt” and, together with First Lien Ratio Debt, “Secured Ratio Debt”) and (2z) if such Indebtedness, Disqualified Stock in the case of Indebtedness that is unsecured or shares of preferred stock is not secured by a Lien on a junior priority basis with the Liens lien on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) if the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereofRatio, on a Pro Forma Basis would not exceed 6.25:1.00 immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 4.50:1.00 (II) or if such Indebtednessincurred in connection with an acquisition, Disqualified Stock merger, consolidation or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderInvestment, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) would not exceed 6.25:1.00 or the greater of (yI) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness4.50:1.00) (Indebtedness under this clause (z), Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder“Unsecured Ratio Debt” and, together with the Secured Ratio Debt, the Fixed Charge Coverage “Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other InvestmentDebt”); provided further that (i) the amount of Indebtedness (other than Acquired Indebtedness), ) and Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 30,000,000 and (y) 4017.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis); (ii) at Ratio Debt shall not mature earlier than Latest Term Loan Maturity Date hereunder or have a weighted average life to maturity shorter than the time Term Loans; (iii) if such Ratio Debt is borrowed or issued by any Credit Party, it shall not be guaranteed by any Person that is not a Credit Party; (iv) (x) in the case of subsequent issuances of First Lien Ratio Debt, the representative for the holders of such incurrenceIndebtedness shall have become a party to the First Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement in accordance with the terms thereof, and (y) in the case of Junior Secured Ratio Debt, the Collateral Agent, the Administrative Agent and the representative of the holders of such Junior Secured Ratio Debt shall have entered into a Second Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement; or in each case, otherwise be subject to an Acceptable Intercreditor Agreement and each of the Administrative Agent and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured Parties any intercreditor agreement contemplated by this clause; (v) in the case of Ratio Debt incurred by a Credit Party, other than for covenants applicable only to periods after the then Latest Term Loan Maturity Date, such Indebtedness shall have covenants that are either (w) reasonably acceptable to the Administrative Agent, (X) substantially similar to the material terms of the Initial Term Loans, (Y) on then market terms (as reasonably determined by the Borrower) or (Z) when taken as a whole, no more restrictive (as determined by the Borrower in good faith) to the Borrower and its Subsidiaries, taken as a whole, than those applicable to the Initial Term Loans; it being understood and agreed that such Indebtedness may be incurred (and shall be deemed acceptable to the Administrative Agent) if such more restrictive covenant is added (only for the period prior to the then Latest Term Loan Maturity Date) for the benefit of the Initial Term Loans; provided that the addition of such more restrictive covenant shall not require the consent of the Administrative Agent or any other Secured Party (and may be implemented with only the Borrower and the lenders providing such Indebtedness) and (vi) in the case of First Lien Ratio Debt (other than revolving Indebtedness), such Ratio Debt shall be subject to the MFN Provisions. 130 The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Credit Agreement (Skillsoft Corp.)
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 2.00 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 80,000,000 and (y) 4030.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Credit Agreement (GoDaddy Inc.)
Limitation on Indebtedness. The Holdings and the Borrower will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and Holdings and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred no more than 6.50 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 45,000,000 and (y) 4020.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Credit Agreement (Visant Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or), in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided except that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:: (a) Indebtedness arising under the Credit Documents; (b) Date listed (i) Indebtedness (including any unused commitment) outstanding on the Closing on Schedule 10.1 and (ii) intercompany Indebtedness (including any unused commitment) outstanding on the Closing Date listed on Schedule 10.1; (c) Indebtedness (including Capitalized Lease Obligations) to finance the purchase, lease, construction, installation, maintenance, replacement or improvement of property (real or personal) or equipment that is used or useful in the business of the Borrower or any Restricted Subsidiary or a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets and Indebtedness arising from the conversion of the obligations of the Borrower or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of the Borrower or such Restricted Subsidiary, in an aggregate principal amount which, when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (c) and all Refinancing Indebtedness incurred to refinance any other Indebtedness incurred pursuant to this clause (d), does not exceed $20.0 million; (d)Indebtedness (including letter of credit obligations consistent with past practice constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business), in respect of workers’ compensation claims, deferred compensation, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement or indemnification type obligations regarding workers’ compensation claims, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance; (e) Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, earnout or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary or other Person, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; (f) [reserved]; -127-#89847286v15
Appears in 1 contract
Limitation on Indebtedness. The Borrower Holdings and the Borrowers will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) , and the Borrower no Credit Party will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockStock.; provided that Holdings and the Borrower Borrowers may, and may permit any Subsidiary to, incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur if, after giving effect thereto, (x) in the case of Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien Ratio, on a pari passu basis with the Liens on the Collateral securing the Obligations), Pro Forma Basis immediately after giving effect to the such incurrence of such Indebtedness and the use application of proceeds thereof, is equal to or less than 5.00:1.00 (or if incurred in connection with an acquisition, merger, consolidation or designation, the Consolidated First Lien Debt to Consolidated EBITDA Ratio on a Pro Forma Basis would not exceed 4.50:1.00 or the greater of (BI) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such acquisition, merger, consolidation or designation and (II) 5.00:1.00) (the Indebtedness under this clause (x), “First Lien Ratio Debt”), (y) in the case of Indebtedness that is secured by the Collateral on a junior basis to the Obligations, if the Consolidated Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma Basis immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 5.50:1.00 (or if incurred in connection with an acquisition, merger, consolidation or designation, the Consolidated Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall would not exceed the greater of (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other Investmentdesignation and (II) 5.50:1.00) (the Indebtedness under this clause (y), “Junior Secured Ratio Debt” and, together with First Lien Ratio Debt, “Secured Ratio Debt”) and (2z) if such Indebtedness, Disqualified Stock in the case of Indebtedness that is unsecured or shares of preferred stock is not secured by a Lien on a junior priority basis with the Liens lien on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) if the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereofRatio, on a Pro Forma Basis would not exceed 6.25:1.00 immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 5.75:1.00 (II) or if such Indebtednessincurred in connection with an acquisition, Disqualified Stock merger, consolidation or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderdesignation, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) would not exceed 6.25:1.00 or the greater of (yI) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower designation and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness5.75:1.00) (Indebtedness under this clause (z), Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder“Unsecured Ratio Debt” and, together with the Secured Ratio Debt, the Fixed Charge Coverage “Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other InvestmentDebt”); provided further that (i) the amount of Indebtedness (other than Acquired Indebtedness), ) and Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 100,000,000 and (y) 40100.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis); (ii) at other than with respect to Ratio Debt in the time form of Customary Bridge Loans, Ratio Debt shall not mature earlier than latest Maturity Date hereunder or have a weighted average life to maturity shorter than the Indebtedness arising under the Credit Documents; (iii) if such Ratio Debt is borrowed or issued by any Credit Party, it shall not be guaranteed by any Person that is not a Credit Party; (iv) in the case of First Lien Ratio Debt in the form of term loans, be subject to the MFN Protection as if such Indebtedness were a New Term Loan; and (v) (x) in the case of subsequent issuances of First Lien Ratio Debt, the representative for the holders of such incurrence. Permitted Other Indebtedness shall have become a party to the Intercreditor Agreement and/or a Junior Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement in accordance with the terms thereof, and (y) in the case of Junior Secured Ratio Debt, the Collateral Agent, the Administrative Agent and the representative of the holders of such Junior Secured Ratio Debt shall have entered into a Junior Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement; or in each case, otherwise be subject to an Acceptable Intercreditor Agreement and each of the Administrative Agent and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured Parties any intercreditor agreement contemplated by this clause; 103 The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Credit Agreement (Skillsoft Corp.)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createCreate, incur, issueassume or suffer to exist any Indebtedness, assumeor permit any preferred stock to be issued or outstanding, guarantee or otherwise become liable, contingently or otherwise except: (collectively, “incur” and collectively, an “incurrence”a) with respect to any Indebtedness (including Acquired Indebtedness) of such Loan Party under this Agreement and the Borrower will not issue other Loan Documents; (b) (i) any shares Intercompany Subordinated Indebtedness and (ii) any Xxxx Xxxxxxx Subordinated Indebtedness; (c) Indebtedness in respect of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock orpurchase money security interests, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockFinancing Leases or Synthetic Leases; provided that the Borrower may incur Indebtedness (including Acquired aggregate amount of Indebtedness incurred pursuant to this Section 8.2(c) in connection withany Fiscal Year shall not exceed $50,000,000; (d) Indebtedness outstanding on the Restatement Effective Date and listed on Schedule 8.2, or in contemplation ofany refinancings, a refundings, renewals or extensions thereof (such refinanced, refunded, renewed or extended Indebtedness, “Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionRefinancing Indebtedness”), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent ; provided that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (Ai) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence stated amount of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would is not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) increased at the time of such incurrence. The foregoing limitations will refinancing, refunding, renewal or extension (except to the extent of non-cash interest), (ii) such refinancing, refunding, renewal or extended Indebtedness shall (A) not apply to:have a stated final maturity prior to the final maturity date of the Indebtedness being refinanced, refunded, renewed or extended and (B) have an average life to maturity equal to or greater than such Indebtedness, (iii) the terms of such refinancing, refunding, renewal or extension, taken as a whole, shall not be more restrictive than the terms of such Indebtedness, (iv) any guarantee entered into in connection with such refinancing, refunding, renewal or extension that is not a refinancing of an existing guarantee of such Indebtedness shall not be permitted under this Section 8.2(d) (except that a Loan Party may guarantee such refinanced Indebtedness) and (v) if the Indebtedness being refinanced, refunded, renewed or extended is subordinated, such Permitted Refinancing Indebtedness shall be subordinated to at least the same extent, and on terms at least as favorable to the Lenders, as the Indebtedness being refinanced, refunded, renewed or extended; USActive 56005294.156005294.9 -208-
Appears in 1 contract
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 1.75 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further providedfurther that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 36,000,000 and (y) 4036.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. 101 The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Second Lien Credit Agreement (National Vision Holdings, Inc.)
Limitation on Indebtedness. The Borrower Company will not, and will not permit any Restricted Subsidiary to of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee guarantee, or otherwise become liableor remain directly or indirectly liable with respect to, contingently any Indebtedness; provided however, that this Section 406 shall not limit the incurrence by the Company or otherwise any Subsidiary of (collectivelyi) the Credit Facility Indebtedness; (ii) Indebtedness incurred hereunder; and (iii) to the extent permitted under the Credit Agreement or the Canadian Credit Agreement (a) Indebtedness secured by Liens permitted under Section 412, “incur” (b) Indebtedness (including, without limitation, guarantees) existing on the date hereof but not the extension, renewal or refunding thereof, (c) Indebtedness to trade creditors incurred and collectivelydeposits from customers received in the ordinary course of business, (d) guarantees constituting the endorsement of negotiable instruments for deposit or collection in the ordinary course of business, (e) Purchase Money Indebtedness to finance capital expenditures in an “incurrence”) aggregate amount outstanding at any time not to exceed $5,000,000 provided that any Lien granted with respect to such Indebtedness is permitted by Section 412(e) hereof, (f) guarantees by the Company of Indebtedness of any Subsidiary permitted under this Section 406 or trade accounts payable of a Subsidiary arising in the ordinary course of business in accordance with customary trade terms and guarantees by any Subsidiary of Indebtedness of the Company or another Subsidiary permitted under this Section 406 or trade accounts payable of the Company or another Subsidiary arising in the ordinary course of business in accordance with customary trade terms, (including Acquired Indebtednessg) other unsecured Indebtedness in the ordinary course of business not to exceed $3,000,000 at any one time outstanding, (h) interest rate and currency protection agreements occurring in the ordinary course of business, (i) Indebtedness to finance insurance premiums, (j) intercompany Indebtedness between the Company and wholly owned Subsidiaries which are Guarantors (other than SLM Trademark Acquisition Canada Corporation) and (k) other unsecured Indebtedness but only if at the time such Indebtedness is incurred, (1) either (x) the Interest Rate on the Securities has been permanently reduced to 12% per annum pursuant to Section 301(a) and the Borrower will not issue Company has irrevocably waived its right to pay any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, interest in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionSecondary Securities as otherwise permitted by Section 301(a) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien y) the Interest Rate on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior Securities has been permanently reduced to the Lien securing the Obligations, or that is unsecured 10% per annum pursuant to the extent that Section 301(b); (12) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness, the ratio of Consolidated EBITDA to Consolidated Interest Expense for the four fiscal quarter period ending on or immediately prior to the time such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or is incurred (Bx) if such Indebtedness, Disqualified Stock or shares of preferred stock Indebtedness is incurred on or prior to consummate September 30, 2001, exceeds 2.25 to 1.00 or (y) if such Indebtedness is incurred at any time thereafter, exceeds 2.75 to 1.00; (3) such Indebtedness does not mature or become subject to any mandatory prepayment other than as a Permitted Acquisition result of an event of default or other Investment not prohibited hereunderamortization of principal prior to July 2, 2004; and (4) the Consolidated First Lien Secured Debt Company shall have delivered to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock Trustee an Officers' Certificate stating that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness satisfies each of the requirements set forth in this Section 406(k) and demonstrating in reasonable detail compliance at the use end of proceeds the applicable accounting period with the restrictions contained clause (2) of this Section 406(k). Section 407. Limitation on Dividends, Distributions and Certain Payments. NY1-463085 EXECUTION The Company and its Subsidiaries will not, directly or indirectly, (i) prepay, redeem, purchase or retire any Indebtedness incurred pursuant to Section 406(k) or (ii) declare, order, pay, make or set apart any sum for any dividends or make any other distribution, whether in cash, property, securities or a combination thereof, on a Pro Forma Basis shall with respect to (Iwhether by reduction of capital or otherwise) not exceed 4.50:1.00 any shares of its capital stock or directly or indirectly redeem, purchase, retire or otherwise acquire for value (IIor permit any Subsidiary to purchase or acquire) not exceed any shares of any class of its capital stock or set aside any amount for any such purpose except that (1) any Subsidiary of the Consolidated First Lien Secured Debt Company may pay dividends or make other distributions to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investmentits direct parent, (2) if such Indebtedness, Disqualified Stock the Company may pay dividends in kind or exchange shares of preferred its capital stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of other such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtednessso long as no Potential Event of Default or Event of Default has occurred and is continuing or would result therefrom, Disqualified Stock the Company may repurchase or redeem its shares of preferred stock is unsecured from employees or secured by assets that are not Collateralofficers who have died, either (A) either (I) resigned, been terminated or retired so long as the Consolidated Total Debt to Consolidated EBITDA Ratio aggregate amount expended in any fiscal year of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would Company does not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 250,000 and (y) 40% of at any time after April 1, 2000, provided that the Consolidated EBITDA Net Income for the most recently ended Test Period (calculated on a Pro Forma Basis) at previous fiscal year of the time of Company equals or exceeds $250,000, an additional $250,000 in such incurrence. The foregoing limitations will not apply to:fiscal year.
Appears in 1 contract
Limitation on Indebtedness. The Borrower Company will not, and will not permit any Restricted Subsidiary to createof its Subsidiaries to, directly or indirectly, incur, issuecreate, assume, guarantee or otherwise in any other manner become liabledirectly or indirectly liable or responsible for the payment of, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including any Acquired Indebtedness), other than Permitted Indebtedness, unless at the time of such event (a) (i) any such Indebtedness or Acquired Indebtedness (other than Senior Indebtedness) has no sinking fund or amortization payment date or final maturity date prior to the Stated Maturity of the Securities and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, (ii) in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred subordinated in connection with, or in contemplation of, a Permitted Acquisition) or issue shares right of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior payment to the Lien securing Securities, the Obligations, or that is unsecured instrument evidencing such Indebtedness shall include subordination provisions substantially similar to those set forth in Article XI as if the extent that Securities were Senior Indebtedness with respect to such Indebtedness and (1b) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect thereto and to any acquisition being financed through the incurrence of such Indebtedness and the use of proceeds thereof, to any Acquired Indebtedness incurred or assumed therewith on a Pro Forma Basis would not exceed 4.50:1.00 or pro forma basis, either (i) the ratio expressed as a percentage of (A) the Indebtedness of the Company and its Restricted Subsidiaries to (B) if such Indebtedness, Disqualified Stock or shares the sum of preferred stock is incurred (1) the Oil and Gas Reserve Estimate with respect to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower Company and the Restricted Subsidiaries plus (including for 2) the value of the Company's direct or indirect percentage ownership in publicly-held Subsidiaries (other than its Restricted Subsidiaries) engaged in oil and gas exploration, development, production or transportation and, without duplication, the Special Subsidiaries, in each case based upon the Average Quoted Price of the common stock of such Subsidiaries or Special Subsidiaries, shall not be greater than 40% or (ii) the ratio expressed as a percentage of (A) the Indebtedness of the Company and its Restricted Subsidiaries to (B) the sum of (1) the Indebtedness of the Company and its Restricted Subsidiaries plus (2) the product of the number of outstanding shares of the Company's common stock as of the date of determination multiplied by the Average Quoted Price of such Capital Stock, plus (3) the product of the number of outstanding shares of the Company's Capital Stock (other than shares held by the Company, or any Subsidiary) as of the date of determination multiplied by the Average Quoted Price of such Capital Stock, shall not be greater than 25%. For purposes of such calculation any Disqualified this calculation, (i) a Subsidiary shall be considered publicly-held if there is a Quoted Price available for its Capital Stock or shares of preferred stock that is secured by a Lien on a pari passu basis and (ii) the Oil and Gas Reserve Estimate shall include, in connection with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereofan acquisition, on a Pro Forma Basis pro forma basis the Oil and Gas Reserve Estimate, if any, of any acquired person and shall be determined as of the end of the fiscal year of the Company and, if applicable, the acquired person, most recently concluded if then available, but if not then available, the end of the previous fiscal year of the Company and, if applicable, the acquired person; provided, however, that the Company may, at its option, make such calculation utilizing a more recent Oil and Gas Reserve Estimate in lieu of the Oil and Gas Reserve Estimate referred to in the preceding clause if (Ia) not exceed 4.50:1.00 or such estimate is prepared, to the extent of at least 85% of the quantities of proven oil and gas reserves set forth in such estimate (II) not exceed which shall be determined on the Consolidated First Lien Secured Debt basis that six thousand cubic feet of gas equal one barrel of oil), by a nationally recognized independent petroleum engineer, reasonably satisfactory to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investmentthe Trustee, (2b) if such Indebtedness, Disqualified Stock or shares of preferred stock Oil and Gas Reserve Estimate is secured by a Lien determined on a junior priority basis consistent with the Liens on estimate prepared at fiscal year end, except that the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio oil and gas prices and currency prices utilized therein shall be as of the Borrower and the Restricted Subsidiaries (including for the purposes date of such calculation any Disqualified Stock or shares of preferred stock that is secured more recent estimate and (c) an officer authorized by a Lien on a junior basis the Company delivers to the Liens on the Collateral securing the Obligations), after giving effect Trustee a certificate to the incurrence effect that such estimate has been prepared in accordance with the requirements of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:this Indenture."
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to to, create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock not, and will not permit any Restricted Subsidiary to to, issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockCapital Stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isCapital Stock, in each case, secured by a Lien on an aggregate outstanding principal amount at the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, time of incurrence or that is unsecured to the extent that issuance not greater than (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 20,000,000 and (y) 4037.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceincurrence or issuance, in each case plus (2) additional amounts if, after giving effect thereto, for the most recently ended Test Period (on a Pro Forma Basis) at the time of incurrence or issuance, the Interest Coverage Ratio is not less than 2.00 to 1.00; provided that the amount of Indebtedness (including Acquired Indebtedness), Disqualified Stock and preferred Capital Stock that may be incurred and issued pursuant to the foregoing together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed an aggregate amount equal to at any one time outstanding the greater of (x) $27,000,000 and (y) 50.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis). Notwithstanding the foregoing or anything else to the contrary in this Section 10.1 (including the immediately succeeding paragraph), solely during the Limited Incurrence Period, the Borrower may only incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and the Restricted Subsidiaries may only incur Indebtedness (including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of preferred Capital Stock under the first paragraph of this Section 10.1, together with any amounts incurred (including Acquired Indebtedness) or issued under Sections 10.1(d), (l)(ii), (n) and (aa), in an aggregate principal amount at any time outstanding during such Limited Incurrence Period not to exceed $80,000,000. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower Company will not, and will not -------------------------- permit any Restricted Subsidiary to createto, incur, issuecreate, contract, assume, have outstanding, guarantee or otherwise become liablebe or become, contingently directly or otherwise indirectly, liable in respect of, any Indebtedness, except (collectivelyi) Indebtedness arising out of this Loan Agreement, “incur” and collectively, an “incurrence”(ii) with respect to any Indebtedness (including Acquired the Subordinated Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that (a) the Borrower may incur principal amount of the Subordinated Indebtedness shall not exceed $125,000,000, (including Acquired b) the interest rate payable on the Subordinated Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisitionshall not exceed nine and one-fourth percent (9 1/4%) or issue shares of Disqualified Stockper annum, and any Restricted Subsidiary may incur (c) the maturity date of the Subordinated Indebtedness shall not be sooner than April 1, 2007, (including Acquired Indebtedness incurred in connection withiii) Indebtedness, or in contemplation of, a excluding Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each caseMargin Debt, secured by a Lien on the Collateral Permitted Liens, (iv) Permitted Margin Debt, (v) current liabilities for taxes and assessments incurred in the ordinary course of business and other liabilities incurred in the ordinary course of business which are currently being contested in good faith and adequate reserves therefor are being maintained according to Generally Accepted Accounting Principles, (vi) current amounts payable or accrued of other claims (other than for borrowed funds or purchase money obligations) incurred in the ordinary course of business provided that all such liabilities, accounts and -------- claims shall be promptly paid and discharged when due or in conformity with customary trade terms, unless such liabilities are currently being contested in good faith and adequate reserves therefor are being maintained according to Generally Accepted Accounting Principles, (vii) Indebtedness of Company and the Subsidiaries not otherwise included in the preceding subclauses of this Section 9.01 that is pari passu with reflected in the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares audited consolidated financial statement of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower Company and the Restricted Subsidiaries (including for the purposes as of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)December 31, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment1996, (2viii) if such IndebtednessIndebtedness evidenced by or created under the Lease Agreements, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations(ix) Indebtedness under any Hedge Agreements that are permitted according to Section 9.18 hereof, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or Indebtedness evidenced by any Interest Swap Agreement, provided such agreement is entered into for business purposes respecting any then existing Indebtedness of Company, and (yxi) such other Indebtedness of Company and the Subsidiaries (in the aggregate) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio exceeding $5,000,000 at any one time outstanding, exclusive of the Borrower any Indebtedness between Company and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness), except that the foregoing limitations will not apply to: (a) Indebtedness arising under the Credit Documents; (b) Date listed (i) Indebtedness (including any unused commitment) outstanding on the Closing on Schedule 10.1 and (ii) intercompany Indebtedness (including any unused commitment) outstanding on the Closing Date listed on Schedule 10.1; (c) Indebtedness (including Capitalized Lease Obligations) to finance the purchase, lease, construction, installation, maintenance, replacement or improvement of property (real or personal) or equipment that is used or useful in the business of the Borrower will not issue any shares of Disqualified Stock and will not permit or any Restricted Subsidiary to issue or a Similar Business, whether through the direct purchase of assets or the Capital Stock of any shares Person owning such assets and Indebtedness arising from the conversion of Disqualified Stock or, in the case obligations of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the or such Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis Subsidiary, in an aggregate principal amount which, when aggregated with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the principal amount of all other Indebtedness (other than Acquired Indebtedness), Disqualified Stock then outstanding and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall this clause (c) and all Refinancing Indebtedness incurred to refinance any other Indebtedness incurred pursuant to this clause (d), does not exceed the greater of (x) $72,000,000 20.0 million and (y) 401.0% of Consolidated EBITDA Total Assets for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence; provided that Capitalized Lease Obligations incurred by the Borrower or any Restricted Subsidiary pursuant to this clause (c) in connection with a Permitted Sale Leaseback shall not be subject to the foregoing limitation so long as the proceeds of such incurrence. The foregoing limitations will not apply to:Permitted Sale Leaseback are used by the Borrower or such Restricted Subsidiary to permanently repay outstanding Term Loans or other Indebtedness secured by a Lien on the assets subject to such Permitted Sale Leaseback (excluding any Lien ranking junior to the Lien securing the Obligations);; (d)Indebtedness (including letter of credit obligations consistent with past practice constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business), in respect of workers’ compensation claims, deferred compensation, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement or indemnification type obligations regarding workers’ compensation claims, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance; (e)Indebtedness arising from agreements of the Borrower or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, earnout or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary or other Person, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; (f) [reserved]; #8983238089847286v115 -135-
Appears in 1 contract
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 1.75 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 36,000,000 and (y) 4036.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. 101 The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will Company shall -------------------------- not, and will shall not permit any Restricted Subsidiary to createof the Company to, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to Incur any Indebtedness other than the following: (including Acquired i) Indebtedness of the Company under the Credit Agreement; (ii) Indebtedness of the Company pursuant to the Notes and Indebtedness of any Note Guarantor pursuant to its Note Guarantee; (iii) Indebtedness of the Company or any Subsidiary outstanding on the Issue Date and listed on Schedule 2 to this Indenture (other than Indebtedness under or in respect of the Credit Agreement); (iv) Indebtedness of the Company owing to and held by any Wholly-Owned Subsidiary or Indebtedness of a Wholly-Owned Subsidiary owing to and held by the Company or any Wholly-Owned Subsidiary; provided, however, that (x) any such Indebtedness is made pursuant to an intercompany note, (y) any such Indebtedness of the Company is Subordinated Indebtedness that is subordinated to the Notes as provided in such intercompany note, and in any event at least to the same extent as the Notes are subordinated to Senior Indebtedness, and (z) and the Borrower will not issue any shares subsequent transfer of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur such Indebtedness (including Acquired Indebtedness incurred in connection with, except to the Company or in contemplation of, a Permitted AcquisitionSubsidiary of the Company) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that iswill be deemed, in each case, secured to constitute the Incurrence of such Indebtedness by the issuer thereof; (v) Obligations of the Company or any Wholly-Owned Subsidiary entered into in the ordinary course of business (A) under Interest Rate Agreements designed to protect such Person against fluctuations in interest rates in respect of Indebtedness of such Person permitted to be incurred under this Indenture, which obligations do not exceed the aggregate principal amount of such Indebtedness, and (B) under Currency Agreements designed to protect such Person against fluctuations in foreign currency exchange rates in respect of foreign exchange exposures incurred by such Person; (vi) Indebtedness of the Company or any Wholly-Owned Subsidiary Incurred subsequent to a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured Public Offering to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)that, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderIncurrence, the Consolidated First Lien Secured Debt to Consolidated EBITDA Coverage Ratio of the Borrower and the Restricted Subsidiaries would be greater than 2.1; (including vii) Any renewals, extensions, substitutions, refinancings or replacements (each, for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligationsthis Section 4.08 and Section 4.14(c), after giving effect to the incurrence a "refinancing") of such any Indebtedness and the use of proceeds thereofdescribed in clause (i), on a Pro Forma Basis shall (Iii), (iii) not exceed 4.50:1.00 or (IIiv) of this Section 4.08, including any successive refinancings, so long as (A) any such new Indebtedness shall be in principal amount that does not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investmentprincipal amount (or, (2) if such IndebtednessIndebtedness being refinanced provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration thereof, Disqualified Stock or shares such lesser amount as of preferred stock is secured by a Lien on a junior priority basis with the Liens on date of determination) so refinanced plus the Collateral securing the Obligations, either (A) either lesser of (I) the Consolidated Senior Secured Debt stated amount of any premium or other payment required to Consolidated EBITDA Ratio be paid in connection with such a refinancing pursuant to the terms of the Borrower Indebtedness being refinanced and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if the amount of premium or other payment actually paid at such time to refinance the Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderplus, in either case, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio amount of expenses of the Borrower and Company or a Subsidiary of the Restricted Subsidiaries (including for the purposes of Company incurred in connection with such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or refinancing; (B) either (I) in the Fixed Charge Coverage Ratio case of any refinancing of Pari Passu Indebtedness or Subordinated Indebtedness, such new Indebtedness is made pari passu with or subordinate in right of payment to the Borrower ---- ----- Notes and the Restricted SubsidiariesNote Guarantees, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereofas applicable, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:at
Appears in 1 contract
Samples: Indenture (Telegroup Inc)
Limitation on Indebtedness. The Borrower will notFor so long as the Indenture has not been terminated in accordance with its terms, the Non-Securitization Entities shall not Incur any Specified Non-Securitization Debt if, after giving effect to such incurrence (and will not permit any Restricted Subsidiary repayment of Specified Non-Securitization Debt on such date), such incurrence would cause the aggregate outstanding principal amount of the Specified Non-Securitization Debt of the Non-Securitization Entities as of such date to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and exceed the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockSpecified Non-Securitization Debt Cap; provided that the Borrower may incur Specified Non-Securitization Debt Cap will not be applicable to any issuance or incurrence of any Specified Non-Securitization Debt (i) issued or incurred to refinance or repay the Notes in whole, (ii) in excess of the Specified Non-Securitization Debt Cap if (a) the applicable creditors (excluding (x) any creditor with respect to an aggregate amount of outstanding Indebtedness less than $100,000 and (including Acquired y) any Indebtedness incurred by any Person prior to such Person becoming a Non-Securitization Entity) under and with respect to such Indebtedness have executed a non-disturbance agreement with the Trustee, as directed by the Manager and in connection witha form reasonably satisfactory to the Trustee, or in contemplation of, a Permitted Acquisition) or issue shares that acknowledges the terms of Disqualified Stockthe Securitization Transaction including the bankruptcy remote status of the Securitization Entities and their respective assets, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1b) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving pro forma effect to the incurrence of such Indebtedness (and the use any repayment of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition existing Indebtedness and any related acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt transaction occurring prior to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis substantially concurrently with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness), the Holdco Leverage Ratio (as calculated without regard to any Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis subject to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (IISpecified Non-Securitization Debt Cap) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater less than or equal to 2.00:1.00 7.00x (provided, for the avoidance of doubt, that any Notes defeased, satisfied or discharged in accordance with the terms of the Indenture shall not be included in the calculation of the Holdco Leverage Ratio under this clause (yb)), (iii) greater than or equal that is considered Indebtedness due solely to a change in accounting rules that takes effect subsequent to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and Closing Date but that was not (3) or, if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are obligations were not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at the time of such incurrence. The foregoing limitations will change in accounting rules, would not apply to:have been) considered Indebtedness prior to such date, (iv) in respect of any obligation of any Non-Securitization Entity to reimburse the Master Issuer for any draws under one or more letters of credit or (v) with respect to any Cash Collateralized Letters of Credit.
Appears in 1 contract
Samples: Parent Company Support Agreement (European Wax Center, Inc.)
Limitation on Indebtedness. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiary to createSubsidiaries to, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to Incur any Indebtedness (including Acquired Indebtedness) other than the Notes and Indebtedness existing on the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockClosing Date); provided that the Borrower Company may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified StockIncur Indebtedness, and any Restricted Subsidiary may incur Indebtedness (including Incur Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence Incurrence of such Indebtedness and the use receipt and application of the proceeds thereoftherefrom, the Consolidated Leverage Ratio would be less than 8 to 1, for Indebtedness Incurred on a Pro Forma Basis would or prior to December 31, 1998, or 7 to 1, for Indebtedness Incurred thereafter. Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time in an aggregate principal amount not to exceed 4.50:1.00 $250 million, less any amount of such Indebtedness permanently repaid as provided under Section 4.10; (ii) Indebtedness (A) to the Company evidenced by an unsubordinated promissory note or (B) if to any of its Restricted Subsidiaries; provided that any event which results in any such Indebtedness, Disqualified Stock Restricted Subsidiary ceasing to be a Restricted Subsidiary or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence subsequent transfer of such Indebtedness and (other than to the use Company or another Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds thereofof which are used to refinance or refund, on a Pro Forma Basis shall then outstanding Indebtedness, other than Indebtedness Incurred under clause (Ii), (ii), (iv), (vi) not exceed 4.50:1.00 or (IIix) of this paragraph, and any refinancings thereof in an amount not to exceed the Consolidated First Lien Secured Debt amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition refinance or other Investmentrefund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (2iii) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes, (IB) in case the Consolidated Senior Secured Debt Indebtedness to Consolidated EBITDA Ratio be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes and (C) such new Indebtedness, determined as of the Borrower date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this clause (iii); (iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; or (C) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (including other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary of the Company for the purposes purpose of financing such calculation acquisition), in an amount not to exceed the gross proceeds actually received by the Company or any Disqualified Stock or shares Restricted Subsidiary in connection with such disposition; (v) Indebtedness of preferred stock that is secured by a Lien on a junior basis the Company, to the Liens on extent the Collateral securing the Obligations), after giving effect net proceeds thereof are promptly (A) used to the incurrence purchase Notes tendered in an Offer to Purchase made as a result of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment Change in Control or (B) either deposited to defease the Notes in accordance with Article Eight; (Ivi) the Fixed Charge Coverage Ratio Guarantees of the Borrower Notes and Guarantees of Indebtedness of the Company by any Restricted Subsidiaries, after giving effect to Subsidiary provided the incurrence Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07; (vii) Indebtedness Incurred to finance the use cost (including the cost of proceeds thereofdesign, on development, construction, installation or integration) of telecommunications network assets, equipment or inventory acquired by the Company or a Pro Forma Basis, would be at least 2.00:1.00 or Restricted Subsidiary after the Closing Date; (IIviii) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio Indebtedness of the Borrower Company not to exceed, at any one time outstanding, two times the Net Cash Proceeds received by the Company after the Closing Date from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Restricted Subsidiaries, after giving effect Company to the incurrence extent such Net Cash Proceeds have not been used pursuant to clause (C) (2) of the first paragraph of Section 4.04 to make a Restricted Payment; provided that such Indebtedness does not mature prior to the Stated Maturity of the Notes and has an Average Life longer than the Notes; and (ix) Indebtedness outstanding at any time in an aggregate principal amount not to exceed $7.5 million, less any amount of such Indebtedness and permanently repaid as provided under Section 4.10; provided, that the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and are used in the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 Company's PCS or (II) if competitive local exchange carrier businesses or to refinance any such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:.
Appears in 1 contract
Samples: Dobson Communications Corp
Limitation on Indebtedness. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to createto, incurIncur any Indebtedness; provided, issuehowever, assume, guarantee that (i) the Company or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness thereof (including Acquired Indebtedness incurred in connection with, other than Opco or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary thereof) may incur Incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien if on the Collateral that is pari passu with date of the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if Incurrence of such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence Incurrence thereof (or, at the Company’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness (such committed amount, a “Company Coverage Ratio Tested Committed Amount”), in which case such Company Coverage Ratio Tested Committed Amount may thereafter be borrowed and the use of proceeds thereofreborrowed in whole or in part, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred from time to consummate a Permitted Acquisition or other Investment not prohibited hereundertime without further compliance with this proviso), the Consolidated First Lien Secured Debt to Consolidated EBITDA Coverage Ratio of the Borrower Company would be equal to or greater than 2.00:1.00 and (ii) Opco or any Restricted Subsidiary thereof may Incur Indebtedness if on the Restricted Subsidiaries (including for date of the purposes Incurrence of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)Indebtedness, after giving effect to the incurrence Incurrence thereof (or, at the Company’s option, on the date of the initial borrowing of such Indebtedness and or entry into the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed definitive agreement providing the Consolidated First Lien Secured Debt commitment to Consolidated EBITDA Ratio immediately prior to fund such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), Indebtedness after giving pro forma effect to the incurrence Incurrence of the entire committed amount of such Indebtedness (such committed amount, an “Opco Coverage Ratio Tested Committed Amount” and, any Company Coverage Ratio Tested Committed Amount or Opco Coverage Ratio Tested Committed Amount, a “Coverage Ratio Tested Committed Amount”), in which case such Opco Coverage Ratio Tested Committed Amount may thereafter be borrowed and the use of proceeds thereofreborrowed in whole or in part, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred from time to consummate a Permitted Acquisition or other Investment not prohibited hereundertime without further compliance with this proviso), the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, Opco would be at least 2.00:1.00 equal to or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:2.00:1.00.
Appears in 1 contract
Samples: Core & Main, Inc.
Limitation on Indebtedness. (a) The Borrower Company will not, and will not permit any Restricted Subsidiary to to, create, incur, issue, assume, guarantee assume or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to Guarantee the payment of any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness and the Borrower Company will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiary Subsidiaries to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with to any Person other than to the Liens on the Collateral securing the Obligations)Company or its Restricted Subsidiaries unless, after giving effect to the incurrence transaction, its Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding the transaction for which financial statements are available immediately preceding the date of such Indebtedness and the use of proceeds thereoftransaction, taken as a single period, is 2.0 to 1 or greater, determined on a Pro Forma Basis would not exceed 4.50:1.00 pro forma basis (including a pro forma application of the net proceeds therefrom) as if the additional Indebtedness had been incurred or (B) if such Indebtedness, the Disqualified Stock (or shares the preferred stock, if applicable) had been issued, as the case may be, at the beginning of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the such four-quarter period. For purposes of such calculation determining any Disqualified Stock or shares particular amount of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)Indebtedness under this Section 4.03, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or obligations which constitute Indebtedness of more than one entity only need to be counted once, and (y) Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not exceed be included. For purposes of determining compliance with this Section 4.03, if an item of Indebtedness meets the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such criteria of more than one of the categories of Permitted Acquisition Indebtedness or other Investment or (B) either (I) may be incurred under the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderRatio, the Fixed Charge Coverage Ratio of the Borrower Company may classify (and the Restricted Subsidiariesfrom time to time may reclassify, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal including pursuant to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition Ratio) the Indebtedness in its sole discretion. The accrual of interest or other Investment and (3) if such Indebtednesspreferred stock dividends, Disqualified Stock the accretion or shares amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock is unsecured as Indebtedness due to a change in accounting principles and the payment of dividends on preferred stock or secured by assets that are not Collateral, either (A) either (I) Disqualified Stock in the Consolidated Total Debt to Consolidated EBITDA Ratio form of additional shares of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares same class of preferred stock or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount thereof is unsecured), after giving effect to included in Fixed Charges of the Company as accrued. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the U.S. dollar-equivalent principal amount of Indebtedness (other than Acquired Indebtedness)denominated in a foreign currency shall be utilized, Disqualified Stock and preferred stock that may be incurred pursuant to calculated based on the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed relevant currency exchange rate in effect on the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of date such incurrence. The foregoing limitations will not apply to:Indebtedness was incurred.
Appears in 1 contract
Samples: Indenture (Constellium N.V.)
Limitation on Indebtedness. The Borrower will notNo Transaction Party (other than ILFC) may incur, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liableliable for or with respect to, or become responsible for, the payment of, contingently or otherwise (collectivelyotherwise, “incur” and collectivelywhether present or future, an “incurrence”) with respect to any Indebtedness other than (including Acquired Indebtednessi) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantorsthe Obligors, preferred stockIndebtedness under the Loan Documents, (ii) in the case of Parent Holdco, Junior Lien Debt, (iii) Indebtedness in respect of guarantees by any Borrower Party of any obligation of any Transaction Party (other than of ILFC or Parent Holdco); (iv) Leases and obligations to Lessees, trustees and others under the Leases, trust agreements and other documents related thereto, including any Indebtedness owed to any Lessee under any such agreement or the Lease with respect to maintenance contributions, redelivery condition adjustment payments or any other obligation of any Subsidiary Holdco or any Lessor Subsidiary to a Lessee; (v) Indebtedness of any Transaction Party owed to ILFC and Pledged Debt; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection withthat, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of no such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be permitted unless (x) not exceed 6.25:1.00 or such Indebtedness has been subordinated to the Obligations and the Junior Lien Obligations pursuant to the terms of the Intercreditor Agreement, (y) not exceed in the Consolidated Senior Secured case of any Pledged Debt Collateral, such Pledged Debt Collateral has been pledged to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio Collateral Agent for the benefit of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred Secured Parties pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed Security Agreement and the greater of (x) $72,000,000 Collateral Agent has a first priority perfected security interest in such Pledged Debt Collateral and (yz) 40% in the case of Consolidated EBITDA for any Pledged Debt Collateral, such Pledged Debt Collateral is evidenced by an Instrument which has been delivered and indorsed to the most recently ended Test Period Collateral Agent; (calculated on vii) Indebtedness required in connection with repossession of an Aircraft or any Engine (as defined in the Security Agreement); and (viii) Indebtedness in favor of the issuer of a Pro Forma Basis) at surety, letter of credit or similar instrument to be obtained by any Subsidiary Holdco or any Lessor Subsidiary in connection with the time repossession or detention of such incurrence. The foregoing limitations will not apply to:an Aircraft or other enforcement action under a Lease.
Appears in 1 contract
Samples: Aircraft Lease Agreement (International Lease Finance Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that (A) the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted SubsidiariesSubsidiaries is at least 1.75:1.00 or (B) the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness), if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, calculated on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater less than or equal to 2.00:1.00 or (y) greater than or equal 6.25 to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further provided, further, that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Sections 10.1(l)(ii) and 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 156.25 million and (y) 4050% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to to, create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect 141 to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock not, and will not permit any Restricted Subsidiary to to, issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockCapital Stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isCapital Stock, in each case, secured by a Lien on an aggregate outstanding principal amount at the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, time of incurrence or that is unsecured to the extent that issuance not greater than (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 80,000,000 and (y) 4037.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceincurrence or issuance, in each case plus (2) additional amounts if, after giving effect thereto, for the most recently ended Test Period (on a Pro Forma Basis) at the time of incurrence or issuance, the Interest Coverage Ratio is not less than 2.00 to 1.00; provided that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred Capital Stock that may be incurred and issued pursuant to the foregoing, together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors, shall not exceed an aggregate principal amount equal to at any one time outstanding the greater of (x) $107,000,000 and (y) 50.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis). The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower that, Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater less than or equal to 0.25:1.00 inside the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investmentthen applicable financial covenant level set forth in Section 10.7(i); provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 35,000,000 and (y) 4030.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createCreate, incur, issue, assume, guarantee assume or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect suffer to exist any Indebtedness (including Acquired Indebtedness) and of the Borrower will not issue or any shares of Disqualified Stock and will not permit any its Restricted Subsidiaries, except Indebtedness of the Borrower or such Restricted Subsidiary to issue any shares of Disqualified Stock orincurred: (a) under the Loan Documents, (b) in the case form of Restricted Subsidiaries reverse repurchase transactions, Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that are constitute “Indebtedness” entered into primarily for investment purposes which have the effect of borrowing; provided, the notional value of all such reverse repurchase transactions, Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that constitute “Indebtedness” entered into primarily for investment purposes which have the effect of borrowing shall not Guarantorsexceed $50 million at any time; and provided further that reverse repurchase transactions, preferred stock; provided Swap Obligations, Interest Rate Agreements, derivatives, or other transactions that do not constitute “Indebtedness” shall be marked to market on a daily basis with any assets or liabilities, as applicable, resulting therefor added or deducted, as applicable, from Adjusted Total Assets and thereby reflected in the Asset Coverage Ratio, (c) pursuant to the Note Purchase Agreement, (d) any additional unsecured Indebtedness that the Borrower may incur issue from time to time provided that the Asset Coverage Ratio is greater than 350% at the time of issue taking into account such issuance, and no Default or Event of Default is then existing or would be caused thereby and Borrower has certified the same to Lenders and the Administrative Agent, and provided further that the net proceeds (after payment of premium, fees and expenses) of such issuances not used to refinance then existing unsecured indebtedness shall be used to repay the Loans and other amounts due under this Agreement until paid in full, provided such 350% condition precedent and use of proceeds requirement may be waived with Required Lenders’ consent, or (e) secured Indebtedness the aggregate principal amount of which is not outstanding for more than 60 days and which does not exceed five percent (5%) of the Borrower’s Total Assets at the time of incurrence of such Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a “Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionSecured Indebtedness”), issue shares of Disqualified Stock and issue shares of preferred stock that is; and, in each case, secured which is not otherwise prohibited by a Lien on law, is in the Collateral that ordinary course of business, and is pari passu with not in contravention of the Lien securing Borrower’s Prospectus and in the Obligationscase of 6.2(a), secured by a Lien on the Collateral that (c), (d) and (e) is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio reflected properly as Senior Securities representing Indebtedness of the Borrower and in the Restricted Subsidiaries (including for calculation of the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect Asset Coverage Ratio. Notwithstanding anything to the incurrence contrary contained in this Agreement, no Indebtedness of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred Unrestricted Subsidiaries shall be recourse to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:.
Appears in 1 contract
Samples: Credit Agreement
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that (A) the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted SubsidiariesSubsidiaries is at least 2.00:1.00 or (B) the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness), if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, calculated on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater less than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment5.75:1.00; provided further provided, further, that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Sections 10.1(l)(ii) and (n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 150235 million and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Samples: First Lien Credit Agreement (BrightSpring Health Services, Inc.)
Limitation on Indebtedness. The Borrower will not, and it will not cause or permit any Restricted Subsidiary to createof its Subsidiaries to, incur, issue, assume, guarantee incur or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to be obligated on any Indebtedness other than: (including Acquired Indebtednessi) the Obligations to the Agent and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary Lenders; (ii) Indebtedness relating to issue any shares of Disqualified Stock or, employee benefit plans; (iii) Indebtedness described in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness clause (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisitiona) or issue shares (b) of Disqualified Stockthe defined term Restricted Investment; (iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection withclaims for labor, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock materials and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured supplies to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis payment therefor shall not at the time be required to be made in accordance with the Liens on provisions of Section 8.1(d) or Section 8.1(e); (v) Indebtedness in respect of judgments or awards that have been in force for less than the Collateral securing applicable period for taking an appeal and for which adequate provision as determined in accordance with GAAP has been made so long as execution is not levied thereunder and in respect of which Borrower or any Subsidiary shall at the Obligations, either time in good faith be prosecuting an appeal or proceedings for review and a suspensive appeal bond in the full amount of such judgment or award shall have been obtained by Borrower or such Subsidiary with respect thereto; (vi) current liabilities of Borrower or any Subsidiary incurred in the ordinary course of business not incurred through (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio borrowing of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)money, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtednessthe obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (vii) endorsements for collection, Disqualified Stock deposits or shares negotiation and warranties of preferred stock is products or services, in each case incurred to consummate a Permitted Acquisition in the ordinary course of business; (viii) Indebtedness in respect of performance, surety or other Investment not prohibited hereunder, appeal bonds obtained in the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio ordinary course of the Borrower Borrower's or any Subsidiary's business; (ix) Indebtedness for any permitted declared and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien unpaid Distributions on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall Borrower's stock; (x) Indebtedness under any Interest Rate Protection Agreements consented to by the Required Lenders; (xi) Indebtedness relating to the MIDNIGHT WRANGLER in a principal amount not exceeding $9,731,417.00 in the aggregate at any one time outstanding; (xii) Indebtedness relating to the MIDNIGHT EAGLE in a principal amount not exceeding $12,000,000.00 in the aggregate at any one time outstanding; (xiii) other Indebtedness in a principal amount not to exceed 6.25:1.00 or $8,00,000.00 in the aggregate at any one time outstanding; (yxiv) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or Indebtedness described in Section 8.1(q); (B) either (Ixv) the Fixed Charge Coverage Ratio guaranty by Borrower of the obligations of Torch Express, L.L.C. under any Conversion Contract; and (xvi) guarantees by Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and performance of contracts by Subsidiaries entered into in the Restricted Subsidiaries, after giving effect to the incurrence ordinary course of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:business.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any other Restricted Subsidiary to to, create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any other Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that each of the Borrower and the Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified StockStock or, and any in the case of Restricted Subsidiary Subsidiaries, may incur Indebtedness (including Acquired Indebtedness incurred in connection with, with or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock stock, that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the First Lien Obligations (and junior to the Liens on the ABL Priority Collateral securing the Obligations), secured by a Lien on the Collateral that is junior to the Lien securing the First Lien Obligations (and junior to the Liens on the ABL Priority Collateral securing the Obligations), or unsecured or secured by a Lien on assets that is unsecured to the extent that do not become Collateral, if, after giving effect thereto, (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on the Collateral on a pari passu basis with the Liens on the Collateral securing the First Lien Obligations (and junior to the Liens on the ABL Priority Collateral securing the Obligations), either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the First Lien Obligations (and junior to the Liens on ABL Priority Collateral security the Obligations)), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 3.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the First Lien Obligations (and junior to the Liens on ABL Priority Collateral security the Obligations)), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 3.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on the Collateral on a junior priority basis with the Liens on the Collateral securing the First Lien Obligations (and junior to the Liens on the ABL Priority Collateral securing the Obligations), either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 4.25:1.00 or (IIB) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 4.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or is secured by assets that are do not become Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecuredunsecured or is secured by assets that do not become Collateral), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 4.75:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 4.75:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted SubsidiariesSubsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured or is secured by assets that do not become Collateral), after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness or the issuance of such Disqualified Stock or preferred stock and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors Credit Parties shall not exceed the greater of (x) $72,000,000 91,250,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Neither the Borrower will notnor any of the Restricted Subsidiaries shall, and will not permit any Restricted Subsidiary to directly or indirectly, create, incur, issue, assume, guarantee or otherwise in any manner become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on to “incur”), for the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such payment of any Indebtedness, Disqualified Stock except as follows: (a) Indebtedness incurred by the Borrower or shares of preferred stock is secured by a Lien any Restricted Subsidiary (including any Indebtedness assumed in connection with an acquisition) so long as, on a pari passu basis with pro forma basis, the Liens on the Collateral securing the ObligationsFixed Charge Coverage Ratio is at least 2.00:1.00, either and any Refinancing Indebtedness in respect thereof; (Ab) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of Indebtedness incurred by the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation pursuant to Credit Facilities and any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)Refinancing Indebtedness in respect thereof; provided, however, that, immediately after giving effect to the incurrence of any such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderincurrence, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the aggregate principal amount of all Indebtedness incurred under this clause (other than Acquired Indebtedness), Disqualified Stock b) and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall then outstanding does not exceed the greater of (x) $72,000,000 and (y7,760,000,000 and(y) 4085.0% of Consolidated EBITDA for Net Tangible Assets; (c) Indebtedness of the most recently ended Test Period (calculated on a Pro Forma Basis) at Borrower and the time Guarantors related to the Initial Term Loans extended under this Agreement and any Guarantees of such incurrence. The foregoing limitations will not apply to:Initial Term Loans and any Refinancing Indebtedness in respect thereof; (d) the incurrence by the Borrower or any Restricted Subsidiary of the Indebtedness existing as of the Closing Date that is described on Schedule 9.2 and any Refinancing Indebtedness in respect thereof; (e) Indebtedness of the Borrower or any Restricted Subsidiary under equipment purchase or lines of credit, or for Capital Lease Obligations or Purchase Money Obligations; provided that, immediately after 72 [[6024167]]
Appears in 1 contract
Samples: Credit and Guaranty Agreement (United Rentals North America Inc)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to to, create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Permitted Other Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Permitted Other Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, thereto on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderBasis, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries is in compliance with (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (Ia) the Consolidated Senior Secured Debt to Consolidated EBITDA Maximum Incremental Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (Ib) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiariesset forth in Section 10.7(b); provided, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereoffurther, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Assumed Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso foregoing, together with any amounts incurred under Section 10.1(n)(x), in each case by Restricted Subsidiaries that are not Guarantors Guarantors, shall not exceed the greater of (x) $72,000,000 15,000,000 and (y) 4035.0% of TTM Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to to, create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock not, and will not permit any Restricted Subsidiary to to, issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockCapital Stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isCapital Stock, in each case, secured by a Lien on an aggregate outstanding principal amount at the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, time of incurrence or that is unsecured to the extent that issuance not greater than (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 40,000,000 and (y) 4015.8% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceincurrence or issuance, in each case plus (2) additional amounts if, after giving effect thereto, for the most recently ended Test Period (on a Pro Forma Basis) at the time of incurrence or issuance, the Interest Coverage Ratio is not less than 2.00 to 1.00; provided that the amount of Indebtedness (including Acquired Indebtedness), Disqualified Stock and preferred Capital Stock that may be incurred and issued pursuant to the foregoing together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed an aggregate amount equal to at any one time outstanding the greater of (x) $75,000,000 and (y) 29.7% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis). The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Credit Agreement (Blue Coat, Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createto, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to incur any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to ), issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, issue any preferred stock; provided that the Borrower and its Restricted Subsidiaries may incur any of the following: (i) Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, is secured by a Lien Liens on the Collateral that is rank pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the First Lien Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), so long as after giving effect to the incurrence of such Indebtedness and amount the use of proceeds thereof, Borrower would be in compliance on a Pro Forma Basis would not exceed 4.50:1.00 or with respect to the last day of the most recently ended Test Period with a First Lien Leverage Ratio (Bas defined in the First Lien Credit Agreement as in effect on the date hereof) of no greater than the greater of (x) 4.75 to 1.00 and (y) if such Indebtedness, Disqualified Stock or shares of preferred stock Indebtedness is incurred to consummate finance a Permitted Acquisition or other permitted Investment not prohibited hereunder(other than Specified Investments), the Consolidated First Lien Secured Debt to Consolidated EBITDA Leverage Ratio of (as defined in the Borrower and First Lien Credit Agreement as in effect on the Restricted Subsidiaries date hereof) immediately prior such Permitted Acquisition or other permitted Investment (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock other than Specified Investments), as applicable, (ii) Indebtedness that is secured by a Lien Liens on a pari passu basis with the Collateral that rank junior to the Liens on the Collateral securing the First Lien Obligations), so long as after giving effect to the incurrence of such Indebtedness and amount the use of proceeds thereof, Borrower would be in compliance on a Pro Forma Basis shall with respect to the last day of the most recently ended Test Period with a Total Secured Leverage Ratio of no greater than the greater of (Ix) not exceed 4.50:1.00 6.00 to 1.00 and (y) if such Indebtedness is incurred to finance a Permitted Acquisition or other permitted Investment (II) not exceed other than Specified Investments), the Consolidated First Lien Total Secured Debt to Consolidated EBITDA Leverage Ratio immediately prior to such Permitted Acquisition or other Investmentpermitted Investment (other than Specified Investments), as applicable, or (2iii) any Indebtedness secured by assets that do not constitute Collateral, any unsecured Indebtedness or Disqualified Stock incurred or issued by the Borrower or any Restricted Subsidiary, and any preferred stock issued by any Restricted Subsidiary that is not a Credit Party, as applicable, so long as after giving effect to the incurrence of such amount the Borrower would be in compliance on a Pro Forma Basis with respect to the last day of the most recently ended Test Period with either (A) a Total Leverage Ratio of no greater than the greater of (x) 6.00 to 1.00 and (y) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligationsstock, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations)as applicable, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate finance a Permitted Acquisition or other permitted Investment not prohibited hereunder(other than Specified Investments), the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Total Leverage Ratio immediately prior to such Permitted Acquisition or other permitted Investment (other than Specified Investments), as applicable, or (B) either (I) the Fixed Charge an Interest Coverage Ratio of no less than the Borrower lesser of (x) 2.00 to 1.00 and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (IIy) if such Indebtedness, Disqualified Stock or shares of preferred stock stock, as applicable, is incurred to consummate finance a Permitted Acquisition or other permitted Investment not prohibited hereunder(other than Specified Investments), the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Interest Coverage Ratio immediately prior to such Permitted Acquisition or other permitted Investment and (3) if such Indebtednessother than Specified Investments), Disqualified Stock or shares of preferred stock is unsecured or secured by assets as applicable; provided, further, that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso foregoing, together with any amounts incurred under Section 10.1(n)(x), by Restricted Subsidiaries that are not Guarantors shall not exceed the greater 134 of (x) $72,000,000 105,000,000 and (y) 4060% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any one time outstanding and (II) to the time of extent applicable, any such incurrenceIndebtedness incurred pursuant to the foregoing shall comply with the Additional Debt Requirements. The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Lien Credit Agreement (HireRight GIS Group Holdings, LLC)
Limitation on Indebtedness. The Borrower Holdings and the Borrowers will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) , and the Borrower no Credit Party will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockStock.; provided that Holdings and the Borrower Borrowers may, and may permit any Subsidiary to, incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur if, after giving effect thereto, (x) in the case of Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien Ratio, on a pari passu basis with the Liens on the Collateral securing the Obligations), Pro Forma Basis immediately after giving effect to the such incurrence of such Indebtedness and the use application of proceeds thereof, is equal to or less than 5.00:1.00 (or if incurred in connection with an acquisition, merger, consolidation or designation, the Consolidated First Lien Debt to Consolidated EBITDA Ratio on a Pro Forma Basis would not exceed 4.50:1.00 or the greater of (BI) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such acquisition, merger, consolidation or designation and (II) 5.00:1.00) (the Indebtedness under this clause (x), “First Lien Ratio Debt”), (y) in the case of Indebtedness that is secured by the Collateral on a junior basis to the Obligations, if the Consolidated Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma Basis immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 5.50:1.00 (or if incurred in connection with an acquisition, merger, consolidation or designation, the Consolidated Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall would not exceed the greater of (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other Investmentdesignation and (II) 5.50:1.00) (the Indebtedness under this clause (y), “Junior Secured Ratio Debt” and, together with First Lien Ratio Debt, “Secured Ratio Debt”) and (2z) if such Indebtedness, Disqualified Stock in the case of Indebtedness that is unsecured or shares of preferred stock is not secured by a Lien on a junior priority basis with the Liens lien on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) if the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereofRatio, on a Pro Forma Basis would not exceed 6.25:1.00 immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 5.75:1.00 (II) or if such Indebtednessincurred in connection with an acquisition, Disqualified Stock merger, consolidation or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderdesignation, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) would not exceed 6.25:1.00 or the greater of (yI) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower designation and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness5.75:1.00) (Indebtedness under this clause (z), Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder“Unsecured Ratio Debt” and, together with the Secured Ratio Debt, the Fixed Charge Coverage “Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other InvestmentDebt”); provided further that (i) the amount of Indebtedness (other than Acquired Indebtedness), ) and Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 100,000,000 and (y) 40100.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis); (ii) at other than with respect to Ratio Debt in the time form of Customary Bridge Loans, Ratio Debt shall not mature earlier than latest Maturity Date hereunder or have a weighted average life to maturity shorter than the Indebtedness arising under the Credit Documents; (iii) if such Ratio Debt is borrowed or issued by any Credit Party, it shall not be guaranteed by any Person that is not a Credit Party; (iv) in the case of First Lien Ratio Debt in the form of term loans, be subject to the MFN Protection as if such Indebtedness were a New Term Loan; and (v) (x) in the case of subsequent issuances of First Lien Ratio Debt, the representative for the holders of such incurrence. Permitted Other Indebtedness shall have become a party to the Intercreditor Agreement and/or a Junior Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement in accordance with the terms thereof, and (y) in the case of Junior Secured Ratio Debt, the Collateral Agent, the Administrative Agent and the representative of the holders of such Junior Secured Ratio Debt shall have entered into a Junior Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement; or in each case, otherwise be subject to an Acceptable Intercreditor Agreement and each of the Administrative Agent and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured Parties any intercreditor agreement contemplated by this clause; The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Credit Agreement (Skillsoft Corp.)
Limitation on Indebtedness. The Borrower will notNo Obligor (other than ILFC) may incur, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liableliable for or with respect to, or become responsible for, the payment of, contingently or otherwise otherwise, whether present or future, any Indebtedness other than (collectivelyi) in the case of the Obligors, “incur” Indebtedness under the Loan Documents, (ii) Indebtedness in respect of guarantees by any Borrower Party of any obligation of any Obligor (other than of ILFC or Parent Holdco); (iii) Leases and collectivelyobligations to Lessees, an “incurrence”) trustees and others under the Leases, trust agreements and other documents related thereto, including any Indebtedness owed to any Lessee under any such agreement or the Lease with respect to maintenance contributions, redelivery condition adjustment payments or any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue other obligation of any shares of Disqualified Stock and will not permit any Restricted Subsidiary Holdco, Intermediate Lessee or Owner Subsidiary to issue a Lessee; (iv) Indebtedness of any shares of Disqualified Stock orObligor owed to ILFC and Pledged Debt; provided that, no such Indebtedness shall be permitted unless, in the case of Restricted Subsidiaries that are not Guarantorsany Pledged Debt Collateral, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on such Pledged Debt Collateral has been pledged to the Collateral that is pari passu with Agent for the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio benefit of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred Parties pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed Security Agreement and the greater of (x) $72,000,000 Collateral Agent has a first priority perfected security interest in such Pledged Debt Collateral and (yz) 40% in the case of Consolidated EBITDA for any Pledged Debt Collateral, such Pledged Debt Collateral is evidenced by an Instrument which has been delivered and indorsed to the most recently ended Test Period Collateral Agent; (calculated on v) Indebtedness required in connection with repossession of an Aircraft or any Engine (as defined in the Security Agreement); and (vi) Indebtedness in favor of the issuer of a Pro Forma Basis) at surety, letter of credit or similar instrument to be obtained by any Subsidiary Holdco, Intermediate Lessee or Owner Subsidiary in connection with the time repossession or detention of such incurrence. The foregoing limitations will not apply to:an Aircraft or other enforcement action under a Lease.
Appears in 1 contract
Samples: Aircraft Lease Agreement (International Lease Finance Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to to, create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock not, and will not permit any Restricted Subsidiary to to, issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockCapital Stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isCapital Stock, in each case, secured by a Lien on an aggregate outstanding principal amount at the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, time of incurrence or that is unsecured to the extent that issuance not greater than (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 20,000,00080,000,000 and (y) 4037.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrenceincurrence or issuance, in each case plus (2) additional amounts if, after giving effect thereto, for the most recently ended Test Period (on a Pro Forma Basis) at the time of incurrence or issuance, the Interest Coverage Ratio is not less than 2.00 to 1.00; provided that the amount of Indebtedness (includingother than Acquired Indebtedness), Disqualified Stock and preferred Capital Stock that may be incurred and issued pursuant to the foregoing, together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors, shall not exceed an aggregate principal amount equal to at any one time outstanding the greater of (x) $27,000,000107,000,000 and (y) 50.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis). The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), with respect to any Indebtedness (including Acquired Indebtedness) ), and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockstock that are not otherwise pledged as Collateral (the “Non-Guarantor Subsidiary Preferred Stock”); provided that the Borrower may, and may permit any Restricted Subsidiary to, incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur if, after giving effect thereto, (x) in the case of Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) if the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien Ratio, on a pari passu basis with the Liens on the Collateral securing the Obligations), Pro Forma Basis immediately after giving effect to the such incurrence of such Indebtedness and the use application of proceeds thereof, is equal to or less than 3.00:1.00 (or if incurred in connection with an acquisition, merger, consolidation or Investment, the Consolidated First Lien Debt to Consolidated EBITDA Ratio on a Pro Forma Basis would not exceed 4.50:1.00 or the greater of (BI) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Debt to Consolidated EBITDA Ratio immediately prior to such acquisition, merger, consolidation or Investment and (II) 3.00:1.00) (the Indebtedness under this clause (x), “First Lien Ratio Debt”), (y) in the case of Indebtedness that is secured by the Collateral on a junior basis to the Obligations, if the Consolidated Secured Debt to Consolidated EBITDA Ratio, on a Pro Forma Basis immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 3.75:1.00 (or if incurred in connection with an acquisition, merger, consolidation or Investment, the Consolidated Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall would not exceed the greater of (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other InvestmentInvestment and (II) 3.75:1.00) (the Indebtedness under this clause (y), “Junior Secured Ratio Debt” and, together with First Lien Ratio Debt, “Secured Ratio Debt”) and (2z) if such Indebtedness, Disqualified Stock in the case of Indebtedness that is unsecured or shares of preferred stock is not secured by a Lien on a junior priority basis with the Liens lien on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) if the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereofRatio, on a Pro Forma Basis would not exceed 6.25:1.00 immediately after giving effect to such incurrence and the application of proceeds thereof, is equal to or less than 4.50:1.00 (II) or if such Indebtednessincurred in connection with an acquisition, Disqualified Stock merger, consolidation or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderInvestment, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) would not exceed 6.25:1.00 or the greater of (yI) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition acquisition, merger, consolidation or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness4.50:1.00) (Indebtedness under this clause (z), Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder“Unsecured Ratio Debt” and, together with the Secured Ratio Debt, the Fixed Charge Coverage “Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other InvestmentDebt”); provided further that (i) the amount of Indebtedness (other than Acquired Indebtedness), ) and Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 30,000,000 and (y) 4017.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis); (ii) at Ratio Debt shall not mature earlier than Latest Term Loan Maturity Date hereunder or have a weighted average life to maturity shorter than the time Term Loans; (iii) if such Ratio Debt is borrowed or issued by any Credit Party, it shall not be guaranteed by any Person that is not a Credit Party; (iv) (x) in the case of subsequent issuances of First Lien Ratio Debt, the representative for the holders of such incurrenceIndebtedness shall have become a party to the First Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement in accordance with the terms thereof, and (y) in the case of Junior Secured Ratio Debt, the Collateral Agent, the Administrative Agent and the representative of the holders of such Junior Secured Ratio Debt shall have entered into a Second Lien Intercreditor Agreement and/or other Acceptable Intercreditor Agreement; or in each case, otherwise be subject to an Acceptable Intercreditor Agreement and each of the Administrative Agent and the Collateral Agent shall be authorized to execute and deliver on behalf of the Secured Parties any intercreditor agreement contemplated by this clause; (v) in the case of Ratio Debt incurred by a Credit Party, other than for covenants applicable only to periods after the then Latest Term Loan Maturity Date, such Indebtedness shall have covenants that are either (w) reasonably acceptable to the Administrative Agent, (X) substantially similar to the material terms of the Initial Term Loans, (Y) on then market terms (as reasonably determined by the Borrower) or (Z) when taken as a whole, no more restrictive (as determined by the Borrower in good faith) to the Borrower and its Subsidiaries, taken as a whole, than those applicable to the Initial Term Loans; it being understood and agreed that such Indebtedness may be incurred (and shall be deemed acceptable to the Administrative Agent) if such more restrictive covenant is added (only for the period prior to the then Latest Term Loan Maturity Date) for the benefit of the Initial Term Loans; provided that the addition of such more restrictive covenant shall not require the consent of the Administrative Agent or any other Secured Party (and may be implemented with only the Borrower and the lenders providing such Indebtedness) and (vi) in the case of First Lien Ratio Debt (other than revolving Indebtedness), such Ratio Debt shall be subject to the MFN Provisions. 128 The foregoing limitations will not apply to:
Appears in 1 contract
Samples: Credit Agreement (Skillsoft Corp.)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to the Subsidiaries to, create, incur, issueassume or suffer to exist any Indebtedness. Notwithstanding the foregoing, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect the limitations set forth in the immediately preceding sentence shall not apply to any of the following: (a) Indebtedness arising under the Credit Documents; (including Acquired Indebtednessb) Indebtedness in respect of the Prepetition First Lien Debt; (c) Indebtedness of the Debtors under the DIP Term Loan Credit Agreement in an aggregate principal amount not to exceed $500,000,000; (d) subject to compliance with Sections 10.5 and 10.13, Indebtedness of the Borrower will not issue or any shares of Disqualified Stock and will not permit Subsidiary owed to the Borrower or any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockSubsidiary; provided that the Borrower may incur all such Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral Credit Party owed to any Person that is pari passu with the Lien securing the Obligations, secured by not a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis Credit Party shall be (x) greater than or equal unsecured and subordinated pursuant to 2.00:1.00 or (y) greater than or equal an intercompany note reasonably satisfactory to the Fixed Charge Coverage Ratio immediately prior Administrative Agent; provided further that such intercompany note shall not be required to such Permitted Acquisition or other Investment and be delivered by any Foreign Subsidiary until 30 days after the Closing Date; (3e) if such Indebtednesssubject to compliance with Section 10.5, Disqualified Stock or shares Guarantee Obligations incurred by (i) Subsidiaries in respect of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio Indebtedness of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation or any Disqualified Stock or shares of preferred stock other Subsidiary that is unsecured), after giving effect permitted to be incurred under this Agreement and (ii) the Borrower in respect of Indebtedness of Subsidiaries that is permitted to be incurred under this Agreement; provided that (x) if the Indebtedness being guaranteed under this Section 10.1(e) is subordinated to the incurrence Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of the Obligations on terms (taken as a whole) at least as favorable to the Lenders as those contained in the subordination of such Indebtedness and (y) a Subsidiary that is not a Credit Party may not, by virtue of this Section 10.1(e), guarantee Indebtedness that such Subsidiary could not otherwise incur under this Section 10.1; (f) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the use ordinary course of proceeds thereofbusiness 140 (including in respect of workers compensation claims, on a Pro Forma Basis would not exceed 6.25:1.00 health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims and similar obligations); (g) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors and licensees, or (IIii) if otherwise constituting Investments permitted by Section 10.5 (other than Investments permitted by Section 10.5(l) by reference to Section 10.1 and Section 10.5(q)); provided that this clause (ii) shall not be construed to limit the requirements of Section 10.1(d) and (e); (h) Indebtedness (including Indebtedness arising under Capital Leases) incurred to finance the purchase price, cost of design, acquisition, construction, repair, restoration, replacement, expansion, installation or improvement of fixed or capital assets or otherwise in respect of Capital Expenditures, so long as such Indebtedness, Disqualified Stock or shares of preferred stock Indebtedness is incurred to consummate a Permitted Acquisition concurrently with or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio within 270 days of the Borrower and the Restricted Subsidiaries (including for the purposes acquisition, construction, repair, restoration, replacement, expansion, installation or improvement of such calculation any Disqualified Stock fixed or shares of preferred stock that is unsecured), after giving effect to the capital assets or incurrence of such Indebtedness Capital Expenditure, and the use of proceeds any refinancing indebtedness thereof, in an aggregate principal amount not to exceed $20,000,000 at any time outstanding; (i) Indebtedness existing on a Pro Forma Basis shall the Petition Date; (xj) Indebtedness in respect of Hedging Agreements; provided that such Hedging Agreements are not exceed 6.25:1.00 entered into for speculative purposes (as determined by the Borrower in good faith) and are entered into in the ordinary course of business; (k) Indebtedness with respect to Existing Letters of Credit and any other letter of credit existing on the Petition Date; (l) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations not in connection with money borrowed, in each case provided in the ordinary course of business or consistent with past practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business (yincluding in respect of construction or restoration activities) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or consistent with past practice; (Bm) either (I) the Fixed Charge Coverage Ratio additional Indebtedness of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness Credit Parties (other than Acquired Indebtedness), Disqualified Stock Indebtedness for borrowed money) and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors Credit Parties; provided that the aggregate amount of Indebtedness incurred or incurred pursuant to this Section 10.1(m) shall not exceed $30,000,000 at any time outstanding; (n) Indebtedness in respect of Cash Management Services and other Indebtedness in respect of overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements in the greater ordinary course of business; (xo) $72,000,000 (i) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services and (yii) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:Indebtedness in
Appears in 1 contract
Limitation on Indebtedness. The Borrower will Company shall not, and will shall not permit any of its Restricted Subsidiary to createSubsidiaries to, incurdirectly or indirectly, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to Incur any Indebtedness (including Acquired Indebtedness), except: (i) Indebtedness of the Company or any of its Restricted Subsidiaries, if immediately after giving effect to the Incurrence of such Indebtedness and the Borrower will not issue any shares receipt and application of Disqualified Stock the net proceeds thereof, the Consolidated Cash Flow Ratio of the Company for a year consisting of the four full fiscal quarters for which quarterly or annual financial statements are available next preceding the Incurrence of such Indebtedness (calculated on a pro forma basis in accordance with Article 11 53 -45- such issuer reasonably incurred in connection therewith and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, (II)(A) in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur any refunding of Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing Securities, such refunding Indebtedness is made pari passu with or subordinate in right of payment to the ObligationsSecurities, secured and, in the case of any refunding of Indebtedness that is subordinate in right of payment to the Securities, such refunding Indebtedness is subordinate in right of payment to the Securities on terms no less favorable to the Holders of the Securities than those contained in the Indebtedness being refunded, (B) in either case, the refunding Indebtedness by its terms, or by the terms of any agreement or instrument pursuant to which such Indebtedness is issued, does not have an Average Life that is less than the remaining Average Life of the Indebtedness being refunded and does not permit redemption or other retirement (including pursuant to any required offer to purchase to be made by the Company or a Lien Restricted Subsidiary of the Company) of such Indebtedness at the option of the holder thereof prior to the final stated maturity of the Indebtedness being refunded, other than a redemption or other retirement at the option of the holder of such Indebtedness (including pursuant to a required offer to purchase made by the Company or a Restricted Subsidiary of the Company) which is conditioned upon a change of control of the Company pursuant to provisions substantially similar to those contained in Section 4.14 and (C) any Indebtedness Incurred to refund any Indebtedness is Incurred by the obligor on the Collateral that is junior to Indebtedness being refunded or by the Lien securing Company; (vi) commodity agreements of the Obligations, Company or that is unsecured any of its Restricted Subsidiaries to the extent that entered into to protect the Company and its Restricted Subsidiaries from fluctuations in the prices of raw materials used in their businesses; (1vii) if such IndebtednessIndebtedness of the Company under the Exchange Securities (as defined in the Registration Rights Agreement) and Indebtedness of the Guarantors, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis under the Guarantee incurred in accordance with the Liens this Indenture; (viii) Indebtedness outstanding on the Collateral securing Issue Date; (ix) guarantees by the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Company or its Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect Indebtedness otherwise permitted to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is be incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall ; (x) not exceed 6.25:1.00 Indebtedness the net proceeds of which are applied to defease the Securities in their entirety; (xi) Indebtedness of the Company or any of its Subsidiaries that is an endorsement of bank drafts and similar negotiable instruments for collection or deposit in the ordinary course of business; (yxii) not exceed Indebtedness incurred by the Consolidated Senior Secured Debt Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition letters of credit issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers' compensation claims or self-insurance, or other Investment Indebtedness with respect to reimbursement type obligations regarding workers' com- 55 -47- pensation claims or (B) either (I) self-insurance and obligations in respect of performance and surety bonds and completion guarantees provided by the Fixed Charge Coverage Ratio Company or any Restricted Subsidiary of the Borrower Company in the ordinary course of business not in excess of $2.0 million; and the Restricted Subsidiaries, after giving effect to the incurrence of such (xiii) Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than Company or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the its Restricted Subsidiaries not otherwise permitted to be Incurred pursuant to clauses (including for the purposes of such calculation i) through (xii) above which, together with any Disqualified Stock or shares of preferred stock that is unsecuredother outstanding Indebtedness Incurred pursuant to this clause (xiii), after giving effect to the incurrence has an aggregate principal amount not in excess of such $20.0 million at any time outstanding, which Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to Incurred under the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:Credit Agreement or otherwise.
Appears in 1 contract
Samples: Definitions and Incorporation by Reference (Dolco Packaging Corp /De/)
Limitation on Indebtedness. The Borrower will not, and it will not cause or permit any Restricted Subsidiary to createof its Subsidiaries to, incur, issue, assume, guarantee incur or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to be obligated on any Indebtedness other than: (including Acquired Indebtednessi) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary Secured Obligations; (ii) Indebtedness relating to issue any shares of Disqualified Stock or, employee benefit plans; (iii) Indebtedness described in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness clause (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisitiona) or issue shares (b) of Disqualified Stockthe defined term Restricted Investment; (iv) Indebtedness in respect of taxes, assessments, governmental charges or levies and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection withclaims for labor, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock materials and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured supplies to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis payment therefor shall not at the time be required to be made in accordance with the Liens on provisions of Section 5.02(d) or Section 5.02(e); (v) Indebtedness in respect of judgments or awards that have been in force for less than the Collateral securing applicable period for taking an appeal and for which adequate provision as determined in accordance with GAAP has been made so long as execution is not levied thereunder and in respect of which Borrower or any Subsidiary shall at the Obligations, either time in good faith be prosecuting an appeal or proceedings for review and a suspensive appeal bond in the full amount of such judgment or award shall have been obtained by Borrower or such Subsidiary with respect thereto; (vi) current liabilities of Borrower or any Subsidiary incurred in the ordinary course of business not incurred through (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio borrowing of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)money, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtednessthe obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (vii) endorsements for collection, Disqualified Stock deposits or shares negotiation and warranties of preferred stock is products or services, in each case incurred to consummate a Permitted Acquisition in the ordinary course of business; (viii) Indebtedness in respect of performance, surety or other Investment not prohibited hereunder, appeal bonds obtained in the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio ordinary course of the Borrower Borrower's or any Subsidiary's business; (ix) Indebtedness for any permitted declared and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien unpaid distributions on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall Borrower's stock; (x) indebtedness under any Interest Rate Protection Agreements (as defined in the Credit Agreement) consented to by Bank; (xi) Indebtedness relating to the MIDNIGHT WRANGLER in a principal amount not exceeding $15,000,000.00 in the aggregate at any one time outstanding; (xii) Indebtedness relating to the MIDNIGHT EAGLE in a principal amount not exceeding $12,000,000.00 in the aggregate at any one time outstanding; (xiii) other Indebtedness in a principal amount not to exceed 6.25:1.00 or $8,00,000.00 in the aggregate at any one time outstanding; (yxiv) not exceed Indebtedness under the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or Credit Agreement; (B) either (Ixv) the Fixed Charge Coverage Ratio guaranty by Borrower of the obligations of Torch Express, L.L.C. under any Conversion Contract (as defined in the Credit Agreement);(xvi) guarantees by Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and performance of contracts by Subsidiaries entered into in the Restricted Subsidiaries, after giving effect to the incurrence ordinary course of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment business and (3xvii) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Subordinate Indebtedness (other than Acquired Indebtednessas defined in the Credit Agreement), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:.
Appears in 1 contract
Samples: Loan Agreement (Torch Offshore Inc)
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createCreate, incur, issue, assume, guarantee assume or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect suffer to exist any Indebtedness (including Acquired Indebtedness) exclusive of trade debt and accrued expenses incurred in the Borrower will ordinary course of business), except: Indebtedness of the Borrowers under this Agreement; Intercompany Indebtedness and any Refinancing of the same, provided, that the same shall be subordinated to the Obligations and be evidenced by a written instrument which has been marked with a legend reflecting such subordination and pledge, a copy of which has been delivered to the Administrative Agent for the benefit of the Lenders; Indebtedness of the Borrowers and any of their Subsidiaries incurred to in connection with capital expenditures; Indebtedness or other obligations to a Dealer Note Purchase Party pursuant to the Dealer Note Purchase Agreement not issue to exceed $15,000,000 in the aggregate; Indebtedness of any shares Loan Party to any direct or indirect Subsidiary of Disqualified Stock SMI in existence on the date hereof as identified on Schedule 9.2 hereto and will not permit subject to Administrative Agent’s prior consent, any Restricted Subsidiary Refinancing of the same; the Senior Notes and any guarantees of the Senior Notes and any Refinancings of the same with senior notes or subordinated notes that are obligations of SMI provided that such notes are on such customary terms and conditions as are then available in the market for issuers of similar credit profile; the Additional Notes and any guarantees of the Additional Notes and any Refinancings of the same with unsecured notes or subordinated secured notes (and if such notes are subordinated secured notes, subject to issue any shares of Disqualified Stock oran Intercreditor Agreement, in form and substance reasonably acceptable to the case of Restricted Subsidiaries Administrative Agent) that are not Guarantors, preferred stockobligations of the Loan Parties provided that such notes are on such customary terms and conditions as are then available in the market for issuers of similar credit profile; any other Indebtedness of any Loan Party which is absolutely and unconditionally subordinated in payment to the Loans to the Lenders; provided that the Borrower terms and conditions thereof are acceptable to the Administrative Agent and each Lender in its sole discretion exercised in good faith; and pension liabilities of the Loan Parties that do not result in the representations and warranties in Section 6.11 being incorrect in any material respect. For the avoidance of doubt, notwithstanding anything to the contrary set forth in this Agreement or any Loan Document, the Loan Parties may incur Indebtedness (including Acquired Indebtedness incurred in connection withissue, guarantee, or in contemplation ofRefinance the Senior Notes, a Permitted Acquisition) or issue shares of Disqualified Stock, any Additional Notes and any Restricted Subsidiary Intercompany Indebtedness without the consent of the Administrative Agent or any of the Lenders, provided, that any such Refinancing complies with the applicable requirements set forth in the definition of “Senior Notes,” “Additional Notes,” or “Intercompany Indebtedness,” as the case may incur Indebtedness (including Acquired Indebtedness incurred be. Limitation on Liens. Create or suffer to exist any Liens or claims upon or against any of its property or assets now owned or hereafter acquired, except Permitted Encumbrances. Without limiting the foregoing, no additional Liens on any of such property and/or assets of it, SMI or any of their respective Subsidiaries, shall be offered or granted to any of the following Persons: the Senior Notes Trustee, the Senior Note Holders and/or any Persons who under this Agreement the Lenders are entitled to have such Borrower cause to enter into an Intercreditor Agreement with the Administrative Agent for the benefit of the Lenders, unless and until the Lenders are offered and granted a first and paramount Lien in connection withthe identical property and/or assets intended to be offered or granted to such other Persons, or as additional collateral for all of the Loans and an Intercreditor Agreement with any such Person(s) is in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that isplace, in each caseform and substance acceptable to the Administrative Agent, secured by a Lien on in its sole discretion, exercised in good faith. Enter into any transaction which materially and adversely affects the Collateral that is pari passu with or its ability to repay the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:Loans.
Appears in 1 contract
Samples: Credit Agreement (Steinway Musical Instruments Inc)
Limitation on Indebtedness. The Borrower will notNo Transaction Party (other than ILFC) may incur, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liableliable for or with respect to, or become responsible for, the payment of, contingently or otherwise (collectivelyotherwise, “incur” and collectivelywhether present or future, an “incurrence”) with respect to any Indebtedness other than (including Acquired Indebtednessi) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantorsthe Obligors, preferred stockIndebtedness under the Loan Documents; (ii) in the case of Grandparent Holdco, Junior Lien Debt; (iii) Indebtedness in respect of guarantees by any Borrower Party of any obligation of any Transaction Party (other than of ILFC, Grandparent Holdco or Parent Holdco); (iv) Leases and obligations to Lessees, trustees and others under the Leases, trust agreements and other documents related thereto, including any Indebtedness owed to any Lessee under any such agreement or the Lease with respect to maintenance contributions, redelivery condition adjustment payments or any other obligation of any Subsidiary Holdco, Intermediate Lessee or Owner Subsidiary to a Lessee; (v) Indebtedness of any Transaction Party owed to ILFC or an Acceding Guarantor and Pledged Debt; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection withthat, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of no such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be permitted unless (x) not exceed 6.25:1.00 or such Indebtedness has been subordinated to the Obligations and the Junior Lien Obligations pursuant to the terms of the Intercreditor Agreement, (y) not exceed in the Consolidated Senior Secured case of any Pledged Debt Collateral, such Pledged Debt Collateral has been pledged to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio Collateral Agent for the benefit of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred Secured Parties pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed Security Agreement and the greater of (x) $72,000,000 Collateral Agent has a first priority perfected security interest in such Pledged Debt Collateral and (yz) 40% in the case of Consolidated EBITDA for any Pledged Debt Collateral, such Pledged Debt Collateral is evidenced by an Instrument which has been delivered and indorsed to the most recently ended Test Period Collateral Agent; (calculated on vi) Indebtedness required in connection with repossession of an Aircraft or any engine; and (vii) Indebtedness in favor of the issuer of a Pro Forma Basis) at surety, letter of credit or similar instrument to be obtained by any Subsidiary Holdco, Intermediate Lessee or Owner Subsidiary in connection with the time repossession or detention of such incurrence. The foregoing limitations will not apply to:an Aircraft or other enforcement action under a Lease.
Appears in 1 contract
Samples: Aircraft Lease Agreement (International Lease Finance Corp)
Limitation on Indebtedness. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiary to Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise otherwise, with respect to (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) Debt), and the Borrower Issuer will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiary Subsidiaries to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided provided, however, that the Borrower Issuer may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionDebt) or issue shares of Disqualified Stock, Stock and any its Restricted Subsidiary Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection withDebt) or issue preferred stock, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of for the Borrower and Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the Restricted Subsidiaries, after giving effect to the incurrence of date on which such additional Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 is incurred or (II) if such Indebtedness, Disqualified Stock or shares of such preferred stock is incurred issued, as the case may be, would have been at least 2.0 to consummate 1.0, determined on a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio pro forma basis (including a pro forma application of the Borrower and net proceeds therefrom), as if the Restricted Subsidiaries, after giving effect to additional Indebtedness had been incurred or the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of the preferred stock is unsecured or secured by assets that are not Collateralhad been issued, either (A) either (I) as the Consolidated Total Debt to Consolidated EBITDA Ratio of case may be, at the Borrower and the Restricted Subsidiaries (including for the purposes beginning of such calculation any Disqualified Stock or shares of preferred stock that is unsecured)four-quarter period; provided, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereoffurther, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the maximum aggregate principal amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred by any Non- Guarantor Restricted Subsidiaries pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors this paragraph and any Permitted Refinancing Indebtedness in respect thereof shall not exceed exceed, at the time of incurrence, the greater of (x) $72,000,000 50.0 million and (y) 4020% of Consolidated EBITDA of the Issuer and its Restricted Subsidiaries for the most recently ended Test Period four fiscal quarters for which internal financial statements are available (calculated on a Pro Forma Basis) at any Indebtedness incurred pursuant to the time of such incurrence. The foregoing limitations will not apply to:provisions described in this paragraph being herein referred to as “Ratio Indebtedness”).
Appears in 1 contract
Samples: Moneygram International Inc
Limitation on Indebtedness. (a) The Borrower Company will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness (other than the Notes and Indebtedness existing on the Closing Date); provided that the Company and any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any may Incur Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence Incurrence of such Indebtedness and the use receipt and application of the proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereundertherefrom, the pro forma Consolidated First Lien Secured Debt Leverage Ratio would be greater than zero and less than 5 to Consolidated EBITDA Ratio 1; provided that no more than 50% of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that Incurred under this clause may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are Subsidiaries. 39 33 Notwithstanding the foregoing, the Company and any Restricted Subsidiary (except as specified below) may Incur each and all of the following: (i) Indebtedness outstanding at any time in an aggregate principal amount not Guarantors shall not to exceed the greater of (A) $200 million and (B) Consolidated Adjusted Operating Cash Flow for the preceding four quarters for which reports have been filed pursuant to Section 4.17, in each case less any amount of Indebtedness permanently repaid as provided under Section 4.10, provided that the aggregate amount of Indebtedness of Restricted Subsidiaries outstanding at any one time under this clause (i) shall not exceed one-half of the greater of the amounts referred to in clause (A) and clause (B) above; (ii) Indebtedness (A) to the Company evidenced by an unsubordinated promissory note or other evidence of unsubordinated indebtedness (provided that such indebtedness may be subordinated to the Proposed ING Credit Facility) or (B) to any of its Restricted Subsidiaries; provided that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Company or another Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (including, without limitation, the Notes), other than Indebtedness Incurred under clause (i), (ii), (iv), (vi), (vii), (viii), (ix), (x) $72,000,000 or (xi) of this paragraph (which clauses are either unlimited in amount or provide for the refinancing of Indebtedness Incurred thereunder), and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund the Notes or Indebtedness that is pari passu with, or subordinated in right of payment to, the Notes shall only be permitted under this clause (iii) if (A) in case the Notes are refinanced in part or the Indebtedness to be refinanced is pari passu with the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made pari passu with, or subordinate in right of payment to, the remaining Notes, (B) in case the Indebtedness to be refinanced is subordinated in right of payment to the Notes, such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes, and (yC) 40such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded (assuming such Indebtedness had a final Stated Maturity three months later than its actual final stated maturity); and provided further that in no event may Indebtedness of the Company be refinanced by means of any Indebtedness of any Restricted Subsidiary pursuant to this clause (iii); (iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Company or its Subsidiaries against fluctuations in foreign 40 34 currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Company or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary of the Company (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary of the Company for the purpose of financing such acquisition), in a principal amount not to exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with such disposition; (v) Indebtedness of the Company, to the extent the net proceeds thereof are promptly (A) used to purchase Notes or DM Notes tendered in an Offer to Purchase made as a result of Change in Control or (B) deposited to defease the Notes as described in Sections 8.02 and 8.03; (vi) Guarantees of the Notes or DM Notes or Guarantees of Indebtedness of the Company by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07; (vii) secured Indebtedness, in an aggregate amount not to exceed $15 million at any one time outstanding, Incurred to finance the cost (including the cost of purchase or installation) of equipment or other tangible capital assets used or useful in the media, communications or entertainment business, in each case acquired by the Company or a Restricted Subsidiary after the Closing Date; (viii) Indebtedness of the Company not to exceed, at any one time outstanding, two times the Net Cash Proceeds (less the amount of such proceeds applied as provided in clause (ii) or (iii) of the second paragraph of Section 4.03 or applied to repay Indebtedness of the Company) received by the Company (or any Restricted Subsidiary that Guarantees the Notes in accordance with Section 4.06; provided that the Company delivers to the Trustee an Opinion of Counsel to the effect (subject to customary caveats) that such Guarantee is enforceable and provided further that such Capital Stock is not subsequently repurchased by the Company or any Restricted Subsidiary) after the Closing Date from the issuance and sale of its Capital Stock (other than Disqualified Stock) to a Person that is not a Subsidiary of the Company; provided that such Indebtedness matures after the Stated Maturity of the Notes and has an Average Life longer than the Notes; (ix) Indebtedness of the Company and each Restricted Subsidiary, not to exceed in the aggregate at any one time outstanding 60% of Consolidated EBITDA the accounts receivable (net of accounts more than 90 days past due, reserves and allowances for doubtful accounts, determined in accordance with GAAP) of the Company and its Restricted Subsidiaries on a consolidated basis as set forth on the balance sheet of the Company most recently ended Test Period filed with the Commission pursuant to Section 4.17; provided that any such Indebtedness of any Restricted Subsidiary is not Guaranteed by the Company; (calculated x) Indebtedness of any Restricted Subsidiary, not to exceed at any one time outstanding the amount of the commitment to lend to such Restricted Subsidiary by any Person not an Affiliate thereof on a Pro Forma Basis) at the time Closing Date (and refinancings of such incurrence. The foregoing limitations will not apply to:Indebtedness); and (xi) without duplication of Indebtedness permitted 41 35 under clause (x), Indebtedness incurred under the Proposed ING Credit Facility (including any Guarantees relating thereto) up to $35 million at any one time outstanding, and any refinancings thereof.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will Company shall not, and will shall not suffer or permit any Restricted domestic Subsidiary to to, create, incur, issue, assume, guarantee suffer to exist, or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) remain directly or indirectly liable with respect to, any Indebtedness, except: (a) Indebtedness incurred pursuant to this Agreement; (b) Indebtedness consisting of Contingent Obligations permitted pursuant to Section 8.08 and the obligations of the Company at such time as any such Contingent Obligation becomes due and payable; (c) Indebtedness existing on the Closing Date and set forth in Schedule 8.05; (including Acquired Indebtednessd) unsecured Indebtedness not otherwise permitted under this Section_8.05 and Indebtedness secured by Liens permitted by subsections 8.01(i), (j), (n) and (p) in an aggregate amount outstanding not to exceed $25,000,000 at any time; (e) Indebtedness evidenced by the Borrower will 1997 Senior Notes and the guarantee thereof by the Subsidiary Guarantors; (f) Indebtedness incurred in connection with leases permitted pursuant to Section 8.10; (g) Indebtedness permitted under subsections_8.04(c) and 8.04(g); (h) Indebtedness under the AIP Bridge Loan which becomes an obligation of the Company upon the effectiveness of the BAC Merger; provided that such Indebtedness was incurred by BAC solely to pay the amounts owed to former shareholders of the Company pursuant to the provisions of the AIP Merger Agreement and the principal amount of such Indebtedness does not issue any shares exceed the amount paid by BAC to such shareholders minus the $143,000,000 equity infusion of Disqualified Stock AIP into BAC; provided further that, unless a Default or Event of Default exists at the effective time of the BAC Merger, the Company shall immediately repay such Indebtedness; and will not permit any Restricted Subsidiary to issue any shares (i) secured Indebtedness of Disqualified Stock or, in the case of Restricted domestic Subsidiaries that which are not Subsidiary Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence aggregate amount of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) 3,000,000 at the time of such incurrenceany time. The foregoing limitations will not apply to:8.06
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any Restricted Subsidiary to createCreate, incur, issueassume or suffer to exist any Indebtedness, assumeor permit any preferred stock to be issued or outstanding, guarantee or otherwise become liable, contingently or otherwise except: (collectively, “incur” and collectively, an “incurrence”a) with respect to any Indebtedness (including Acquired Indebtedness) of such Loan Party under this Agreement and the Borrower will not issue other Loan Documents; (b) (i) any shares Intercompany Subordinated Indebtedness and (ii) any Xxxx Xxxxxxx Subordinated Indebtedness; (c) Indebtedness in respect of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock orpurchase money security interests, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockFinancing Leases or Synthetic Leases; provided that the Borrower may incur Indebtedness (including Acquired aggregate amount of Indebtedness incurred pursuant to this Section 8.2(c) in connection withany Fiscal Year shall not exceed $50,000,000; (d) Indebtedness outstanding on the Restatement Effective Date and listed on Schedule 8.2, or in contemplation ofany refinancings, a refundings, renewals or extensions thereof (such refinanced, refunded, renewed or extended Indebtedness, “Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionRefinancing Indebtedness”), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent ; provided that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (Ai) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence stated amount of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would is not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) increased at the time of such incurrence. The foregoing limitations will refinancing, refunding, renewal or extension (except to the extent of non-cash interest), (ii) such refinancing, refunding, renewal or extended Indebtedness shall (A) not apply to:have a stated final maturity prior to the final maturity date of the Indebtedness being refinanced, refunded, renewed or extended and (B) have an average life to maturity equal to or greater than such Indebtedness, (iii) the terms of such refinancing, refunding, renewal or extension, taken as a whole, shall not be more restrictive than the terms of such Indebtedness, (iv) any guarantee entered into in connection with such refinancing, refunding, renewal or extension that is not a refinancing of an existing guarantee of such Indebtedness shall not be permitted under this Section 8.2(d) and (v) if the Indebtedness being refinanced, refunded, renewed or extended is subordinated, such Permitted Refinancing Indebtedness shall be subordinated to at least the same extent, and on terms at least as favorable to the Lenders, as the Indebtedness being refinanced, refunded, renewed or extended; (e) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that such Indebtedness (other than credit or purchase cards) is extinguished within one (1) Business Day after notification to any Credit Party
Appears in 1 contract
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) ), 129 with respect to to, any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur unsecured Indebtedness (including unsecured Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur unsecured Indebtedness (including unsecured Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or Effect thereto (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (Ii) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater no less than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment 3.00:1.00 and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (Iii) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, be no greater than the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to 0.25:1.00 lower than the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the maximum Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiariespermitted under Section 10.7; provided, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereoffurther, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired unsecured Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 85,000,000 and (y) 4030% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower will Guarantor shall not, and will shall not permit any of its Restricted Subsidiary to createSubsidiaries to, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to Incur any Indebtedness (including Acquired Indebtedness) other than the Term Loans and Indebtedness existing on the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stockdate hereof); provided that the Borrower Guarantor may incur Incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence Incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio receipt and application of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereundertherefrom, the Fixed Charge Coverage Ratio would be at least 2.0 to 1.0. Notwithstanding the foregoing, the Guarantor and any Restricted Subsidiary (except as specified below) may Incur each and all of the Borrower and following: (i) Indebtedness in an aggregate principal amount not to exceed $150 million, or in the event that the Guarantor or any Restricted SubsidiariesSubsidiary incurs any Indebtedness permitted under clause (vii) of this paragraph, after giving effect the difference between $150 million less the amount of any such Indebtedness incurred pursuant to said clause (vii); provided that no more than 25% of the Indebtedness Incurred under this clause (i) may be used for purposes other than capital expenditures; (ii) Indebtedness owed (A) to the incurrence Guarantor evidenced by a promissory note or (B) to any Restricted Subsidiary; provided that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Guarantor or another Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (ii); (iii) Indebtedness issued in exchange for, or the net proceeds of which are used to refinance or refund, then outstanding Indebtedness (other than Indebtedness Incurred under clause (ii), (vi), (vii) or (x) of this paragraph) and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); (iv) Indebtedness (A) in respect of performance, surety or appeal bonds provided in the ordinary course of business, (B) under Currency Agreements and Interest Rate Agreements; provided that such agreements (a) are designed solely to protect the Guarantor or its Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (b) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder; and (C) arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Guarantor or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), in a principal amount not to exceed the gross proceeds actually received by the Guarantor or any Restricted Subsidiary in connection with such disposition; (v) Indebtedness of the Guarantor, to the extent the net proceeds thereof are promptly (A) used to purchase Securities tendered in an offer to purchase Securities under either of the Indentures made as a result of a Change in Control (as defined in the respective Indenture) or (B) deposited to defease the Securities pursuant to either or both of the Indentures; (vi) Guarantees of the Securities and Guarantees of Indebtedness of the Guarantor by any Restricted Subsidiary provided the Guarantee of such Indebtedness is permitted by and made in accordance with Subsection 11(b)(5); (vii) Indebtedness outstanding at any time in the aggregate principal amount not to exceed $50 million from official, regional and multilateral development agencies; (viii) Acquired Indebtedness (I) to the extent Incurred in connection with an Asset Acquisition in which the consideration paid by the Guarantor or any of its Restricted Subsidiaries consists solely of Capital Stock (other than Disqualified Stock) of the Guarantor, without any limitations as to amount or (II) to the extent Incurred in connection with an Asset Acquisition in which the consideration paid by the Guarantor or any, of its Restricted Subsidiaries consists of cash or other property, so long as the aggregate amount of such consideration paid by the Guarantor or any of its Restricted Subsidiaries does not exceed $15 million; (ix) Series A Convertible Notes and Series B Convertible Notes issued (1) pursuant to the Plan or (2) to holders of Indebtedness existing as of the Closing Date in respect of which such holders did not vote affirmatively to accept the Plan so long as the amount of Series B Convertible Notes issued to any such holder does not exceed the amount of such Indebtedness that such holder would have been entitled to receive had it voted affirmatively to accept the Plan, (x) Indebtedness of any Restricted Subsidiary, to the extent that the extent that the Guarantor is the beneficial owner of such Indebtedness and the use of proceeds thereof, on such Indebtedness is evidenced by a Pro Forma Basis shall be (x) greater than promissory note or equal to 2.00:1.00 or (y) greater than or equal participation certificate issued to the Fixed Charge Coverage Ratio immediately prior to Guarantor by the record holder of such Permitted Acquisition or other Investment Indebtedness; and (3xi) if Indebtedness of the Guarantor (in addition to Indebtedness permitted under clauses (i) through (ix) above) in an aggregate principal amount outstanding at any time not to exceed $100 million, less any amount of such IndebtednessIndebtedness permanently repaid as provided under Subsection 11(b)(9); provided, Disqualified Stock or shares however, that (i) such Indebtedness is expressly made subordinate in right of preferred stock is unsecured or secured by assets payment to this Guarantee, the terms of such subordinated Indebtedness expressly provide that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence holders of such Indebtedness shall not be entitled to receive any payments during such time as a Default or Event of Default has occurred and is continuing under the use Financing Agreement or accelerate such Indebtedness until such time as a declaration of proceeds thereof, on acceleration under the Financing Agreement has occurred pursuant to a Pro Forma Basis would not exceed 6.25:1.00 Default or Event of Default and (IIB) if such Indebtedness, Disqualified Stock or shares in the event that a declaration of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderacceleration of the Obligations under the Financing Agreement has been rescinded and annulled, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after event giving effect rise to the incurrence acceleration of such Indebtedness incurred pursuant to this clause (ix) shall be deemed cured and the use of proceeds thereofsuch acceleration shall be deemed rescinded and annulled without any further action, on a Pro Forma Basis shall and (xii) such Indebtedness does not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately mature prior to the Maturity Date. Notwithstanding any other provision of this Subsection 11(b)(1), the maximum amount of Indebtedness that the Guarantor or a Restricted Subsidiary may Incur pursuant to this Subsection 11(b)(1) shall not be deemed to be exceeded, with respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rates of currencies. For purposes of determining any particular amount of Indebtedness under this Subsection 11(b)(1), (1) Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such Permitted Acquisition or other Investment or particular amount shall not be included and (B2) either (Iany Liens granted pursuant to the equal and ratable provisions referred to in Subsection 11(b)(7) shall not be treated as Indebtedness. For purposes of determining compliance with this Subsection 11(b)(1), in the Fixed Charge Coverage Ratio event that an item of Indebtedness meets the criteria of more than one of the Borrower types of Indebtedness described in the above clauses, the Guarantor, in its sole discretion, shall classify, and from time to time may reclassify, such item of Indebtedness and only be required to include the Restricted Subsidiaries, after giving effect to the incurrence amount and type of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence in one of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:clauses.
Appears in 1 contract
Limitation on Indebtedness. The Borrower Guarantor will not, and will not permit any Restricted Subsidiary to createof its Subsidiaries to, directly or indirectly, incur, issuecreate, assume, guarantee or otherwise in any other manner become liabledirectly or indirectly liable or responsible for the payment of, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including any Acquired Indebtedness), other than Permitted Indebtedness, unless at the time of such event (a) (i) any such Indebtedness or Acquired Indebtedness (other than Senior Indebtedness of the Guarantor and Senior Indebtedness of the Borrower will not issue any shares Company) has no sinking fund or amortization payment date or final maturity date prior to the Stated Maturity of Disqualified Stock the Securities and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, (ii) in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred subordinated in connection with, or in contemplation of, a Permitted Acquisition) or issue shares right of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior payment to the Lien securing Securities and the ObligationsGuarantees thereof, or that is unsecured the instrument evidencing such Indebtedness shall include subordination provisions substantially similar to those set forth in Articles XI and XIII as if the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio Securities were Senior Indebtedness of the Borrower Company and the Restricted Subsidiaries Guarantees were Senior Indebtedness of the Guarantor with respect to such Indebtedness and (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), b) after giving effect thereto and to any acquisition being financed through the incurrence of such Indebtedness and the use of proceeds thereof, to any Acquired Indebtedness incurred or assumed therewith on a Pro Forma Basis would not exceed 4.50:1.00 or pro forma basis, either (i) the ratio expressed as a percentage of (A) the Indebtedness of the Guarantor and its Restricted Subsidiaries to (B) if such Indebtedness, Disqualified Stock or shares the sum of preferred stock is incurred (1) the Oil and Gas Reserve Estimate with respect to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower Guarantor and the Restricted Subsidiaries plus (including for 2) the value of the Guarantor's direct or indirect percentage ownership in publicly-held Subsidiaries (other than its Restricted Subsidiaries) engaged in oil and gas exploration, development, production or transportation and, without duplication, the Special Subsidiaries, in each case based upon the Average Quoted Price of the common stock of such Subsidiaries or Special Subsidiaries, shall not be greater than 40% or (ii) the ratio expressed as a percentage of (A) the Indebtedness of the Guarantor and its Restricted Subsidiaries to (B) the sum of (1) the Indebtedness of the Guarantor and its Restricted Subsidiaries plus (2) the product of the number of outstanding shares of the Guarantor's Capital Stock as of the date of determination multiplied by the Average Quoted Price of such Capital Stock, plus (3) the product of the number of outstanding shares of the Company's Capital Stock (other than any shares held by the Guarantor or any Subsidiary) as of the date of determination multiplied by the Average Quoted Price of such Capital Stock, shall not be greater than 25%. For purposes of such calculation any Disqualified this calculation, (i) a Subsidiary shall be considered publicly-held if there is a Quoted Price available for its Capital Stock or shares of preferred stock that is secured by a Lien on a pari passu basis and (ii) the Oil and Gas Reserve Estimate shall include, in connection with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereofan acquisition, on a Pro Forma Basis pro forma basis the Oil and Gas Reserve Estimate, if any, of any acquired person and shall be determined as of the end of the fiscal year of the Guarantor and, if applicable, the acquired person, most recently concluded if then available, but if not then available, the end of the previous fiscal year of the Guarantor and, if applicable, the acquired person; provided, however, that the Guarantor may, at its option, make such calculation utilizing a more recent Oil and Gas Reserve Estimate in lieu of the Oil and Gas Reserve Estimate referred to in the preceding clause if (Ia) not exceed 4.50:1.00 or such estimate is prepared, to the extent of at least 85% of the quantities of proven oil and gas reserves set forth in such estimate (II) not exceed which shall be determined on the Consolidated First Lien Secured Debt basis that six thousand cubic feet of gas equal one barrel of oil), by a nationally recognized independent petroleum engineer, reasonably satisfactory to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investmentthe Trustee, (2b) if such Indebtedness, Disqualified Stock or shares of preferred stock Oil and Gas Reserve Estimate is secured by a Lien determined on a junior priority basis consistent with the Liens on estimate prepared at fiscal year end, except that the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio oil and gas prices and currency prices utilized therein shall be as of the Borrower and the Restricted Subsidiaries (including for the purposes date of such calculation any Disqualified Stock or shares of preferred stock that is secured more recent estimate and (c) an officer authorized by a Lien on a junior basis the Guarantor delivers to the Liens on the Collateral securing the Obligations), after giving effect Trustee a certificate to the incurrence effect that such estimate has been prepared in accordance with the requirements of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:this Indenture.
Appears in 1 contract
Limitation on Indebtedness. The Borrower Holdings will not, and will not permit any Restricted Subsidiary to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower Holdings will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower Holdings may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower Holdings and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred 1.75 to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment1.00; provided further providedfurther that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 36,000,000 and (y) 4036.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any one time outstanding. 101 National Vision Holdings, Inc. has requested confidential treatment of this registration statement and associated correspondence pursuant to Rule 83 of the time of such incurrenceSecurities and Exchange Commission. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Neither Borrower, nor any entity through which Borrower will notholds (directly or indirectly) any interest in any Property, and will not permit shall have any Restricted Subsidiary to createIndebtedness for borrowed money other than (a) obligations under the Loan Documents, incur(b) Indebtedness in existence on the Effective Date, issueas set forth in Schedule 9.4, assume(c) Indebtedness incurred after the Effective Date that refinances, guarantee refunds or otherwise become liablereplaces Indebtedness described in the preceding clauses (a) or (b) (including Indebtedness for any related premiums, contingently fees or otherwise other expenses incurred in connection with such refinancing, refunding or replacement Indebtedness), provided that all prepayments required under Section 2.2 in connection therewith shall have been made, (d) Indebtedness under commercial mortgage backed securities programs, (e) Indebtedness under mezzanine secured mortgage debt programs or mezzanine Indebtedness secured by a pledge of equity interests held directly or indirectly by the Borrower which equity interests represents a direct or indirect ownership interest in any Property (collectively, “incur” "Permitted Mezzanine Indebtedness"), (f) up to $75,000,000 in aggregate principal amount of additional financing in the form of a revolving line of credit, in form and collectively, an “incurrence”) with respect substance reasonably satisfactory to any Indebtedness (including Acquired Indebtedness) the Administrative Agent and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary Required Lenders, to issue any shares of Disqualified Stock orbe used primarily for temporary acquisition financing, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that if such financing is secured, the Liens granted in respect thereof shall comply with Section 9.5 hereof, (g) loans or advances made by (i) any of Kimco, the Borrower, any of its Subsidiaries or any entity through which the Borrower may incur Indebtedness holds (including Acquired directly or indirectly) any interest in any Property to (ii) the Borrower or any such entity, and (h) Indebtedness incurred in connection withwith a Permitted Third Party Purchase, whether incurred prior to, at the time of, or after consummation of such Permitted Third Party Purchase, including Indebtedness assumed in contemplation of, connection with a Permitted Acquisition) Third Party Purchase (and Indebtedness that refinances, refunds or issue shares of Disqualified Stockreplaces Indebtedness described in this clause (h), and including Indebtedness for any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness related premiums, fees or other expenses incurred in connection withwith such refinancing, refunding or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired replacement Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:.
Appears in 1 contract
Samples: Credit Agreement (Kimco Realty Corp)
Limitation on Indebtedness. The Borrower Except as noted in the second paragraph of this Section 9.01, no member of the Obligated Group will notincur, and will not permit any Restricted Subsidiary to create, incurcontract, issuewaive, assume, have outstanding, guarantee or otherwise be or become liable, contingently directly or otherwise indirectly, or both, in respect of, any Indebtedness, except (collectivelyi) Indebtedness arising out of this Loan Agreement, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired the Guaranties of the Guarantors as listed on Exhibit N) (ii) Indebtedness secured by the Permitted Liens, (iii) current liabilities for taxes and assessments incurred in the ordinary course of business, (iv) current amounts payable or accrued of other claims (other than for borrowed funds or purchase money obligations) incurred in the ordinary course of business, provided that all such liabilities, accounts and claims shall be promptly paid and discharged when due or in conformity with trade terms, (v) Indebtedness of the Obligated Group as reflected in the audited consolidated financial statement of the Company and its Consolidated Subsidiaries as of June 30, 2004, (iv) the Indebtedness disclosed to Lenders as indicated on the attached Exhibit M, and (v) Indebtedness in respect of any Financial Hedge. Notwithstanding the foregoing and, specifically, the parenthetical exclusion contained in subparagraph (iv) above, the Obligated Group, as a whole, or any member or combination of members of the Obligated Group, may incur during the term of this Commitment, new Indebtedness For Borrowed Money (including, without limitation, purchase money Indebtedness) and (the Borrower will "New Indebtedness") not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock orexceeding $5,000,000, in the case aggregate. The foregoing $5,000,000 aggregate limitation on New Indebtedness during the term of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that this Loan Agreement shall apply to the Borrower may incur Indebtedness (including Acquired entire Obligated Group and shall be calculated based on the aggregate dollar value of New Indebtedness incurred in connection withby all members of the Obligated Group, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur but shall exclude New Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with assumed or guaranteed by an Obligated Group member, so long as the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes aggregate of such calculation assumed or guaranteed New Indebtedness for all Obligated Group members does not exceed $5,000,000 outstanding at any Disqualified Stock or shares of preferred stock that is secured by a Lien point in time. The foregoing restrictions on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such New Indebtedness and shall not prohibit any Subsidiary that is not a member of the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Obligated Group from incurring New Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio so long as no member of the Borrower and the Restricted Subsidiaries Obligated Group is a co-maker, surety or guarantor of that New Indebtedness (including except for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I$5,000,000 allowance) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrencepermitted above. The foregoing limitations will not apply to:AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Appears in 1 contract
Limitation on Indebtedness. (a) The Borrower Issuer will not, and will not permit any of its Restricted Subsidiary to Subsidiaries (other than the Existing Digital Assets Subsidiaries) to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise otherwise, with respect to (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) Debt), and the Borrower Issuer will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiaries (other than an Existing Digital Assets Subsidiary that is not the Existing Digital Assets Subsidiary Holdco) to issue any shares of Disqualified Stock orPreferred Stock; provided, in the case of Restricted Subsidiaries that are not Guarantorshowever, preferred stock; provided that the Borrower Issuer may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionDebt) or issue shares of Disqualified Stock, Stock and any its Restricted Subsidiary Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection withDebt) or issue Preferred Stock, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of for the Borrower and Issuer’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the Restricted Subsidiaries, after giving effect to the incurrence of date on which such additional Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 is incurred or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock such Preferred Stock is incurred issued, as the case may be, would have been at least 2.0 to consummate 1.0 (or solely with respect to Indebtedness that is convertible into, or exchangeable for, Capital Stock, at least 1.0 to 1.0), determined on a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio pro forma basis (including a pro forma application of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of net proceeds thereof), on a Pro Forma Basis shall be (x) greater than as if the additional Indebtedness had been incurred or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateralthe Preferred Stock had been issued, either (A) either (I) as the Consolidated Total Debt to Consolidated EBITDA Ratio of case may be, at the Borrower and the Restricted Subsidiaries (including for the purposes beginning of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investmentfour-quarter period; provided further that (i) the maximum aggregate principal amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred by any Non-Guarantor Restricted Subsidiaries (other than any Existing Digital Assets Subsidiary) pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors this paragraph and any Permitted Refinancing Indebtedness in respect thereof shall not exceed the greater of (x) $72,000,000 25.0 million and (y) 4020% of Trailing Consolidated EBITDA for and (ii) any Indebtedness that is convertible into, or exchangeable for, Capital Stock (“FCCR Convertible Indebtedness”) shall either (A) have a final maturity date later than the most recently ended Test Period final maturity date of the Notes or (calculated B) to the extent such Indebtedness has a final maturity date earlier than the final maturity date of the Notes, the Notes will mature on a Pro Forma Basissuch date that is 91 days prior to such earlier maturity date unless on such date (i) at the time Issuer has Liquidity in excess of 130% of the amount required to pay in full in cash the then outstanding aggregate principal amount of and accrued interest on such Indebtedness or (ii) less than $100,000,000 of the aggregate principal amount of such incurrence. The foregoing limitations will not apply to:Indebtedness remain outstanding 91 days prior to the final maturity date of such Indebtedness (any Indebtedness incurred pursuant to the provisions described in this paragraph being herein referred to as “Ratio Indebtedness”).
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of its Restricted Subsidiary Subsidiaries to create, incur, issue, assume, guarantee or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness (including Acquired Indebtedness) and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower and its Restricted Subsidiaries may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted AcquisitionIndebtedness), issue shares of Disqualified Stock and issue shares of preferred stock that isstock, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)if, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderthereto, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness2.00 to 1.00; provided, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunderfurther, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso together with any amounts incurred under Section 10.1(n)(x) by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 165,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the any one time of such incurrenceoutstanding. The foregoing limitations will not apply to:
Appears in 1 contract
Limitation on Indebtedness. The Borrower (a) Wise Intermediate Holdings will not, and will not permit any Restricted Subsidiary to to, create, incur, issue, assume, guarantee assume or otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to Guarantee the payment of any Indebtedness (including Acquired Indebtedness) other than Permitted Indebtedness and the Borrower Wise Intermediate Holdings will not issue any shares of Disqualified Stock and will not permit any of its Restricted Subsidiary Subsidiaries to issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Guarantors, preferred stock; provided that the Borrower may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness incurred in connection with, or in contemplation of, a Permitted Acquisition), issue shares of Disqualified Stock and issue shares of preferred stock that is, in each case, secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior to the Lien securing the Obligations, or that is unsecured to the extent that (1) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)to any Person other than to Wise Intermediate Holdings or its Restricted Subsidiaries unless, after giving effect to the incurrence transaction, (i) with respect to Indebtedness incurred, or Disqualified Stock issued, by Wise Intermediate Holdings or any Restricted Subsidiary (other than Opco or any Opco Restricted Subsidiary) and any preferred stock issued by any Restricted Subsidiary (other than XxxXx, Opco or any Opco Restricted Subsidiary), Wise Intermediate Holdings’ Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding the transaction for which financial statements are available immediately preceding the date of such Indebtedness and the use of proceeds thereoftransaction, taken as a single period, is 2.0 to 1.0 or greater, determined on a Pro Forma Basis would not exceed 4.50:1.00 pro forma basis (including a pro forma application of the net proceeds therefrom) as if the additional Indebtedness had been incurred or (B) if such Indebtedness, the Disqualified Stock (or shares the preferred stock, if applicable) had been issued, as the case may be, at the beginning of such four-quarter period and (ii) with respect to Indebtedness incurred, or Disqualified Stock issued, by Opco or any Opco Restricted Subsidiary and any preferred stock issued by any Opco Restricted Subsidiary, Opco’s Fixed Charge Coverage Ratio for the four full fiscal quarters immediately preceding the transaction for which financial statements are available immediately preceding the date of such transaction, taken as a single period, is incurred 2.0 to consummate 1.0 or greater, determined on a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio pro forma basis (including a pro forma application of the Borrower and net proceeds therefrom) as if the Restricted Subsidiaries additional Indebtedness had been incurred or the Disqualified Stock (including for or the preferred stock, if applicable) had been issued, as the case may be, at the beginning of such four-quarter period. For purposes of such calculation determining any Disqualified Stock or shares particular amount of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations)Indebtedness under this Section 4.03, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or obligations which constitute Indebtedness of more than one entity only need to be counted once, and (y) Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not exceed be included. For purposes of determining compliance with this Section 4.03, if an item of Indebtedness meets the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such criteria of more than one of the categories of Permitted Acquisition Indebtedness or other Investment or (B) either (I) may be incurred under the Fixed Charge Coverage Ratio of the Borrower Ratio, Wise Intermediate Holdings may classify (and the Restricted Subsidiariesfrom time to time may reclassify, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal including pursuant to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition Ratio) the Indebtedness in its sole discretion. The accrual of interest or other Investment and (3) if such Indebtednesspreferred stock dividends, Disqualified Stock the accretion or shares amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock is unsecured as Indebtedness due to a change in accounting principles and the payment of dividends on preferred stock or secured by assets that are not Collateral, either (A) either (I) Disqualified Stock in the Consolidated Total Debt to Consolidated EBITDA Ratio form of additional shares of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares same class of preferred stock or Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of preferred stock or Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount thereof is unsecured)included in Fixed Charges of Wise Intermediate Holdings or Opco, after giving effect to as the case may be, as applicable. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the U.S. dollar-equivalent principal amount of Indebtedness (other than Acquired Indebtedness)denominated in a foreign currency shall be utilized, Disqualified Stock and preferred stock that may be incurred pursuant to calculated based on the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed relevant currency exchange rate in effect on the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of date such incurrence. The foregoing limitations will not apply to:Indebtedness was incurred.
Appears in 1 contract
Samples: Indenture (Constellium N.V.)
Limitation on Indebtedness. The Borrower will notParent Guarantor shall not create, and will not assume, incur, suffer to exist or otherwise become or remain liable in respect of, or permit any Restricted Subsidiary of its Subsidiaries to create, assume, incur, issue, assume, guarantee suffer to exist or otherwise become liableor remain liable in respect of, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to any Indebtedness except (including Acquired Indebtednessi) Indebtedness arising under the Related Documents, (ii) Indebtedness existing on the date hereof and the Borrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, reflected in the case financial statements delivered pursuant to Section 13(e) hereof, and any extension, renewal or replacement of Restricted Subsidiaries that are not Guarantorssuch Indebtedness provided, preferred stock; provided that the Borrower may incur principal amount thereof upon any such extension, renewal or replacement shall not exceed the principal amount of Indebtedness at the time of such extension, renewal or replacement or the terms thereof, (including Acquired iii) Indebtedness of a Person existing at the time such Person becomes a Subsidiary of the Parent Guarantor and not incurred in connection with, with or in contemplation ofof such Person becoming a Subsidiary of the Parent Guarantor, a Permitted Acquisitionprovided that all such Indebtedness permitted under this clause (iii) or issue shares of Disqualified Stockdoes not exceed $3,000,000 at any one time outstanding, and any Restricted Subsidiary may incur extension, renewal or replacement of such Indebtedness provided, that the principal amount thereof upon any such extension, renewal or replacement shall not exceed the principal amount of Indebtedness at the time of such extension, renewal or replacement, (including Acquired iv) Indebtedness incurred in connection with, of the Parent Guarantor or in contemplation of, a Permitted Acquisition), issue shares any of Disqualified Stock and issue shares of preferred stock that is, in each case, its Subsidiaries secured by a Lien on permitted under Section 14(c)(iv) or Capitalized Lease Obligations, provided that the Collateral principal amount thereof (and the amount of such Capitalized Lease Obligations attributable to principal) does not exceed in the aggregate $3,000,000 at any one time outstanding, (iv) Indebtedness which, together with all other Indebtedness permitted under clauses (ii), (iii) and (iv) of this Section 14(b), does not exceed $5,000,000 at any one time outstanding, and (v) Indebtedness that is pari passu with the Lien securing the Obligations, secured by a Lien on the Collateral that is junior subordinated to the Lien securing obligations of the Obligations, or that is unsecured Credit 20 Parties under the Related Documents on terms and conditions satisfactory to the extent Majority Secured Parties in their commercially reasonable discretion provided that (1) if such Indebtedness, Disqualified Stock no Potential Default or shares Event of preferred stock is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations, either (A) the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio of the Borrower Default shall have occurred and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock be continuing or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), would result therefrom and after giving pro forma effect to the incurrence of such Indebtedness the Parent Guarantor shall be in compliance with and the use of proceeds thereof, on a Pro Forma Basis would not exceed 4.50:1.00 or (B) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred shall be projected to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio be in compliance with each of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a pari passu basis with the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (I) not exceed 4.50:1.00 or (II) not exceed the Consolidated First Lien Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment, (2) if such Indebtedness, Disqualified Stock or shares of preferred stock is secured by a Lien on a junior priority basis with the Liens on the Collateral securing the Obligations, either (A) either (I) the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is secured by a Lien on a junior basis to the Liens on the Collateral securing the Obligations), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Senior Secured Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment and (3) if such Indebtedness, Disqualified Stock or shares of preferred stock is unsecured or secured by assets that are not Collateral, either (A) either (I) the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis would not exceed 6.25:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries (including for the purposes of such calculation any Disqualified Stock or shares of preferred stock that is unsecured), after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall (x) not exceed 6.25:1.00 or (y) not exceed the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to such Permitted Acquisition or other Investment or (B) either (I) the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis, would be at least 2.00:1.00 or (II) if such Indebtedness, Disqualified Stock or shares of preferred stock is incurred to consummate a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio of the Borrower and the Restricted Subsidiaries, after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, on a Pro Forma Basis shall be (x) greater than or equal to 2.00:1.00 or (y) greater than or equal to the Fixed Charge Coverage Ratio immediately prior to such Permitted Acquisition or other Investment; provided further that the amount of Indebtedness (other than Acquired Indebtedness), Disqualified Stock and preferred stock that may be incurred pursuant to the foregoing proviso by Restricted Subsidiaries that are not Guarantors shall not exceed the greater of (x) $72,000,000 and (y) 40% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of such incurrence. The foregoing limitations will not apply to:financial covenants set forth in Section 15.
Appears in 1 contract
Samples: Parent Guaranty (Minimed Inc)
