Common use of Limitations on Incurrence of Additional Indebtedness Clause in Contracts

Limitations on Incurrence of Additional Indebtedness. (a) The Company agrees that it shall not incur any Additional Indebtedness without meeting the financial tests set forth in (b) below; provided that, except as otherwise provided in this Agreement, at the time of incurrence thereof no Event of Default (or event which with notice or lapse of time, or both; would constitute an Event of Default) under this Agreement shall have occurred and shall be continuing unless such event will be cured upon incurrence of such Indebtedness and application of the proceeds thereof and the placing in service of any facilities financed thereby; and provided, further, that this requirement concerning no Event of Default shall not apply to Indebtedness incurred with the consent of the Bond Insurer. (b) Prior to incurrence of any Indebtedness, the Company shall deliver to the Trustee an Officer's Certificate certifying the Debt Service Coverage Ratio and Capitalization Ratio for the Historic Test Period, taking into account the aggregate of (i) the current aggregate Outstanding principal amount of all existing Indebtedness to be Outstanding after the issuance of the proposed Additional Indebtedness and (ii) the proposed Additional Indebtedness, is not less than 2.0 times and 65%, respectively. For the purpose of computing such Debt Service Coverage Ratio, the amount of Annual Debt Service on the proposed Additional Indebtedness shall be the amount of scheduled principal and interest to be paid thereon from the date of incurrence thereof to the end of the then Fiscal Year. For the purpose of computing Debt Service Coverage Ratio on any Additional Indebtedness to be incurred as Variable Rate Indebtedness, the amount of Annual Debt Service on such Variable Rate Indebtedness shall be deemed to be the average interest rate on such Variable Rate Indebtedness had it been outstanding and calculated during the 12 months prior to its incurrence.

Limitations on Incurrence of Additional Indebtedness. Each Borrower covenants that it will not incur any additional Indebtedness, except as follows: (a) The Company agrees that it shall not incur any Additional Indebtedness without in an aggregate stated principal amount for the Borrower and BAG Holdings not to exceed $40,000,000, which may be Additional Parity Indebtedness (subject to an Intercreditor Agreement entered into and meeting the financial tests set forth in (b) below; provided thatrequirements of Section 8.3 of the Indenture), except as otherwise provided in this Agreement, at if prior to the time date of incurrence thereof no Event of Default (or event which with notice or lapse of time, or both; would constitute an Event of Default) under this Agreement shall have occurred and shall be continuing unless such event will be cured upon incurrence of such Additional Indebtedness and application there is delivered to the Trustee a Certificate of the proceeds thereof and Borrower Representative certifying that (I) the placing in service Borrowers on a consolidated basis with BAG Holdings have maintained a Debt Service Coverage Ratio of any facilities financed thereby; and provided, further, that this requirement concerning no Event of Default shall not apply less than 2.00 to Indebtedness incurred with the consent 1.00 as of the Bond Insurerlast day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements, and (II) the Borrowers on a consolidated basis with BAG Holdings have maintained a ratio of net debt (calculated by subtracting the Borrowers’ on a consolidated basis with BAG Holdings’ total cash and cash equivalents from its total short-term and long-term Indebtedness) to earnings before interest, taxes, depreciation, and amortization (EBITDA) of less than 4.00 to 1.00 as of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day, if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements. (b) Prior Liabilities (other than for borrowed money and other than rents payable under lease agreements) incurred in the regular course of operations; (c) Reimbursement and other obligations arising under reimbursement agreements relating to incurrence letter of any credit or similar credit facilities used to secure or provide liquidity in connection with Indebtedness, the Company shall deliver ; (d) Contractual liabilities for which money is available; and (e) Liabilities for contributions to the Trustee an Officer's Certificate certifying the Debt Service Coverage Ratio and Capitalization Ratio for the Historic Test Period, taking into account the aggregate of (i) the current aggregate Outstanding principal amount of all existing Indebtedness to be Outstanding after the issuance of the proposed Additional Indebtedness and (ii) the proposed Additional Indebtedness, is not less than 2.0 times and 65%, respectively. For the purpose of computing such Debt Service Coverage Ratio, the amount of Annual Debt Service on the proposed Additional Indebtedness shall be the amount of scheduled principal and interest to be paid thereon from the date of incurrence thereof to the end of the then Fiscal Year. For the purpose of computing Debt Service Coverage Ratio on any Additional Indebtedness to be incurred as Variable Rate Indebtedness, the amount of Annual Debt Service on such Variable Rate Indebtedness shall be deemed to be the average interest rate on such Variable Rate Indebtedness had it been outstanding and calculated during the 12 months prior to its incurrenceself-insurance programs.

Limitations on Incurrence of Additional Indebtedness. (a) The Company agrees will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (including Acquired Indebtedness) and the Company will not permit any of its Restricted Subsidiaries to issue any Preferred Stock; provided, however, that it shall the Company or any Restricted Subsidiary may incur Indebtedness and any Restricted Subsidiary may issue Preferred Stock if on the date of the incurrence of such Indebtedness or issuance of Preferred Stock, after giving effect to the incurrence or issuance thereof, the Fixed Charge Coverage Ratio of the Company would have been greater than 2.0 to 1.0. (b) Notwithstanding clause (a) of this Section 4.09, the Company and its Restricted Subsidiaries may incur, without duplication, any of the following items of Indebtedness (“Permitted Indebtedness”): (1) Indebtedness of the Company or any Restricted Subsidiary under any Credit Facility in an aggregate principal amount at any one time outstanding not incur to exceed $50.0 million less, without duplication, any Additional permanent repayment of any term loan thereunder, if any, and any permanent reduction in revolving loan commitments thereunder, in each case, from the proceeds of one or more Asset Sales which are used after the Issue Date to repay a Credit Facility; (2) other Indebtedness without meeting of the Company or any Restricted Subsidiary arising from the Plan of Reorganization and other Indebtedness of the Company and its Restricted Subsidiaries outstanding on the Issue Date (other than Indebtedness under the ABL Facility Agreement); (3) Indebtedness under the Notes issued on the Issue Date, Indebtedness under PIK Notes, any accrual of additional principal amount of any Notes or PIK Notes in lieu of paying interest in the form of PIK Notes thereon, and, in each case, the Guarantees, if any, with respect thereto; (4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capitalized Lease Obligations and Purchase Money Indebtedness, in each case, (A) subject to the approval by the Company’s Board of Directors, (B) incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of the Company or any of its Restricted Subsidiaries, and (C) in an aggregate principal amount, including all Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 4.09(b)(4), not to exceed $5.0 million; (5) the incurrence by the Company or any of its Restricted Subsidiaries of Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a), 4.09(b)(3), 4.09(b)(4), 4.09(b)(5) or 4.09(b)(12); (6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (A) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is not the Company or a Guarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor; and (B) (i) any subsequent issuance or transfer of Capital Stock that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this Section 4.09(b)(6); (7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of Preferred Stock; provided, however, that: (A) any subsequent issuance or transfer of Capital Stock that results in any such Preferred Stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (B) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an issuance of such Preferred Stock by such Restricted Subsidiary that was not permitted by this Section 4.09(b)(7); (8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business; (9) the guarantee by the Company or any of the Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed; (10) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Indebtedness in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(2); (b11) belowthe incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business; (12) any obligation arising from agreements of the Company providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of a Restricted Subsidiary in a transaction permitted by this Indenture; provided thatthat such obligation is not reflected as a liability on the face of the balance sheet of the Company or any Restricted Subsidiary; (13) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, except draft or similar instrument inadvertently drawn against insufficient funds, so long as otherwise provided such Indebtedness is covered within five Business Days; and (14) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in this Agreement, at the time of incurrence thereof no Event of Default an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this Section 4.09(b)(14), not to exceed $10.0 million. For purposes of determining compliance with Section 4.09, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (1) through (14) above or is entitled to be incurred pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a), the Company shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness in any manner that complies with Section 4.09; provided that Indebtedness under the ABL Facility Agreement which with notice is in existence on or lapse of timeprior to the Issue Date, and any renewals, extensions, refundings, refinancing or both; would constitute an Event of Default) under this Agreement shall have occurred and shall be continuing unless such event replacements thereof, will be cured upon incurrence deemed to have been incurred on such date under clause (1), and the Company will not be permitted to reclassify any portion of such Indebtedness thereafter. Accrual of interest, accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and application the payment of dividends on Disqualified Capital Stock in the form of additional shares of the proceeds thereof and the placing in service same class of any facilities financed thereby; and provided, further, that this requirement concerning no Event of Default shall Disqualified Capital Stock will not apply to Indebtedness incurred with the consent of the Bond Insurer. (b) Prior to incurrence of any Indebtedness, the Company shall deliver to the Trustee an Officer's Certificate certifying the Debt Service Coverage Ratio and Capitalization Ratio for the Historic Test Period, taking into account the aggregate of (i) the current aggregate Outstanding principal amount of all existing Indebtedness to be Outstanding after the issuance of the proposed Additional Indebtedness and (ii) the proposed Additional Indebtedness, is not less than 2.0 times and 65%, respectively. For the purpose of computing such Debt Service Coverage Ratio, the amount of Annual Debt Service on the proposed Additional Indebtedness shall be the amount of scheduled principal and interest to be paid thereon from the date of incurrence thereof to the end of the then Fiscal Year. For the purpose of computing Debt Service Coverage Ratio on any Additional Indebtedness to be incurred as Variable Rate Indebtedness, the amount of Annual Debt Service on such Variable Rate Indebtedness shall be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for purposes of Section 4.09. In addition, for purposes of determining any particular amount of Indebtedness under Section 4.09, guarantees, Liens or letter of credit obligations supporting Indebtedness otherwise included in the average interest rate determination of such particular amount shall not be included so long as incurred by a Person that could have incurred such Indebtedness. Subject to the preceding paragraph, any Indebtedness incurred under any Credit Facility pursuant to clause (1) shall be deemed for purposes of Section 4.09 to have been incurred on the date such Variable Rate Indebtedness had it been outstanding and calculated during the 12 months prior was first incurred until such Indebtedness is actually repaid, other than pursuant to its incurrence“cash sweep” provisions or any similar provisions under any Credit Facility that provide that such Indebtedness is deemed to be repaid daily (or other periodically).

Limitations on Incurrence of Additional Indebtedness. Each Borrower covenants that it will not incur any additional Indebtedness, except as follows: (a) The Company agrees that it shall not incur any Additional Indebtedness without in an aggregate stated principal amount for the Borrower and BAG Holdings not to exceed $40,000,000, which may be Additional Parity Indebtedness (subject to an Intercreditor Agreement entered into and meeting the financial tests set forth in (b) below; provided thatrequirements of Section 8.3 of the Indenture), except as otherwise provided in this Agreement, at if prior to the time date of incurrence thereof no Event of Default (or event which with notice or lapse of time, or both; would constitute an Event of Default) under this Agreement shall have occurred and shall be continuing unless such event will be cured upon incurrence of such Additional Indebtedness and application there is delivered to the Trustee a Certificate of the proceeds thereof and Borrower Representative certifying that (I) the placing in service Borrowers on a consolidated basis with BAG Holdings have maintained a Debt Service Coverage Ratio of any facilities financed thereby; and provided, further, that this requirement concerning no Event of Default shall not apply less than 2.00 to Indebtedness incurred with the consent 1.00 as of the Bond Insurerlast day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements, and (II) the Borrowers on a consolidated basis with BAG Holdings have maintained a ratio of net debt (calculated by subtracting the Borrowers’ on a consolidated basis with BAG Holdings’ total cash and cash equivalents from its total short-term and long-term Indebtedness) to earnings before interest, taxes, depreciation, and amortization (EBITDA) of less than 4.00 to 1.00 as of the last day of the most recently ended fiscal quarter for the period consisting of the four consecutive quarters ending on such day, if based on unaudited consolidated financial statements of the Borrowers on a consolidated basis with BAG Holdings, and as of the last day of the Fiscal Year if based on audited financial statements. (b) Prior Liabilities (other than for borrowed money and other than rents payable under lease agreements) incurred in the regular course of operations; (c) Reimbursement and other obligations arising under reimbursement agreements relating to incurrence letter of any credit or similar credit facilities used to secure or provide liquidity in connection with Indebtedness, ; (d) Contractual liabilities for which money is available; and (e) Liabilities for contributions to self-insurance programs. (f) Additional Parity Indebtedness in the Company shall deliver form of a loan from the County to the Trustee an Officer's Certificate certifying Borrowers of the Debt Service Coverage Ratio and Capitalization Ratio for proceeds from the Historic Test Periodsale of a third series of the Bonds (the “Series 2022B Bonds”), taking into account proceeds of which shall be used to complete the Taxable Series 2022 Improvements, provided that the following conditions are met: (1) The original aggregate of (i) the current aggregate Outstanding principal amount of all existing Indebtedness the Series 2022 Bonds and the Series 2022B Bonds shall not exceed $160,000,000; (2) The Series 2022B Bonds shall be sold pursuant to Purchase Contract by and among the County, the Borrowers and ▇.▇. ▇▇▇▇▇▇▇▇ & Co., as representative for the underwriters, no later than 60 days after the Date of Issuance of the Series 2022 Bonds; (3) The Series 2022B Bonds shall be Outstanding after sold on the same terms as the Series 2022 Bonds, and any terms (including but not limited to price, coupon, and redemption provisions) of the Series 2022B Bonds that are more favorable to the holders of the Series 2022B Bonds than to the holders of the Series 2022 Bonds, shall inure to the benefit of the Series 2022 Bonds, by amendments or supplements to the Indenture, this Agreement and the other Financing Documents, as applicable; (4) The Series 2022B Bonds shall not be purchased, traded or put on the balance sheet of ▇.▇. ▇▇▇▇▇▇▇▇ & Co., any other broker dealer or any banking institution; (5) The Series 2022B Bonds shall not be purchased or held by BAG Holdings or any affiliate or subsidiary of BAG Holdings; (6) The Series 2022B Bonds shall not be transferred by any holder thereof during the six month period beginning on the Date of Issuance of the Series 2022B Bonds; and (7) Prior to the issuance of the proposed Additional Indebtedness and Series 2022B Bonds, the Borrower Representative shall provide to the Trustee a certificate of an Independent Municipal Finance Consultant certifying that (iia) the proposed Additional Indebtednessterms of the Series 2022B Bonds are same terms as the Series 2022 Bonds prior to the issuance of the Series 2022B Bonds, is not less or (b) certain proposed terms of the Series 2022B Bonds are more favorable to the purchasers thereof than 2.0 times the terms of the Series 2022 Bonds, with such certification identifying such terms. In the event such certificate identifies terms of the Series 2022B Bonds that are more favorable to the purchasers thereof than the terms of the Series 2022 Bonds, any and 65%, respectively. For the purpose of computing such Debt Service Coverage Ratio, the amount of Annual Debt Service on the proposed Additional Indebtedness all amendments to Financing Documents necessary to satisfy Section 8.10(e)(3) above shall be the amount of scheduled principal and interest to be paid thereon from the date of incurrence thereof a condition precedent to the end issuance of the then Fiscal Year. For the purpose of computing Debt Service Coverage Ratio on any Additional Indebtedness to be incurred as Variable Rate Indebtedness, the amount of Annual Debt Service on such Variable Rate Indebtedness shall be deemed to be the average interest rate on such Variable Rate Indebtedness had it been outstanding and calculated during the 12 months prior to its incurrenceSeries 2022B Bonds.

Limitations on Incurrence of Additional Indebtedness. (a) The Company agrees will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume, guarantee, acquire, become liable, contingently or otherwise, with respect to or otherwise become responsible for payment of (collectively, “incur”) any Indebtedness (other than Permitted Indebtedness); provided, however, that it if no Default or Event of Default shall not incur any Additional Indebtedness without meeting the financial tests set forth in (b) below; provided that, except as otherwise provided in this Agreement, have occurred and be continuing at the time of or as a consequence of the incurrence thereof no Event of Default any such Indebtedness, the Company or any of its Restricted Subsidiaries may incur (or event which with notice or lapse x) Subordinated Indebtedness (including, without limitation, Acquired Indebtedness that constitutes Subordinated Indebtedness) if on the date of time, or both; would constitute an Event of Default) under this Agreement shall have occurred and shall be continuing unless such event will be cured upon the incurrence of such Indebtedness and application Subordinated Indebtedness, after giving effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio of the proceeds thereof Company would have been greater than 2.25 to 1.0 (the “Fixed Charge Coverage Ratio Provision”) and (y) non-Subordinated Indebtedness (including Acquired Indebtedness that constitutes non-Subordinated Indebtedness) if on the date of the incurrence of such non-Subordinated Indebtedness, after giving effect to the incurrence thereof, the Consolidated Fixed Charged Coverage Ratio of the Company would have been greater than 2.25 to 1.0 and the placing in service of any facilities financed thereby; and provided, further, that this requirement concerning no Event of Default shall not apply to Indebtedness incurred with the consent Consolidated Senior Leverage Ratio of the Bond InsurerCompany would have been less than 4.75 to 1.0. (b) Prior to Notwithstanding the foregoing, if the Notes do not have the Minimum Rating at the time of the incurrence of Indebtedness pursuant to the Fixed Charge Coverage Ratio Provision of clause (a) above by a Restricted Subsidiary that is not a Guarantor then the aggregate amount of Indebtedness (other than Permitted Indebtedness) that may be incurred by a Restricted Subsidiary that is not a Guarantor pursuant to the Fixed Charge Coverage Ratio Provision of clause (a) above shall not exceed, taken together with any other Indebtedness incurred pursuant to the Fixed Charge Coverage Ratio Provision of clause (a) above by the Company’s Restricted Subsidiaries that are not Guarantors and then outstanding, $150.0 million less the aggregate amount of Indebtedness incurred by the Company’s Restricted Subsidiaries that are not Guarantors pursuant to clause (15) of the definition of Permitted Indebtedness and then outstanding. (c) The Company will not, and will not permit any Guarantor to, directly or indirectly, incur any Indebtedness which by its terms (or by the terms of any agreement governing such Indebtedness, ) is expressly subordinated in right of payment to any other Indebtedness of the Company shall deliver or such Guarantor, as the case may be, unless such Indebtedness is also by its terms (or by the terms of any agreement governing such Indebtedness) made expressly subordinate to the Trustee an Officer's Certificate certifying Notes or the Debt Service Coverage Ratio applicable Guarantee, as the case may be, to the same extent and Capitalization Ratio for in the Historic Test Period, taking into account the aggregate of (i) the current aggregate Outstanding principal amount of all existing same manner as such Indebtedness is subordinated to be Outstanding after the issuance other Indebtedness of the proposed Additional Indebtedness and (ii) Company or such Guarantor, as the proposed Additional Indebtedness, is not less than 2.0 times and 65%, respectivelycase may be. For the purpose of computing such Debt Service Coverage Ratio, the amount of Annual Debt Service on the proposed Additional Indebtedness shall be the amount of scheduled principal and interest to be paid thereon from the date of incurrence thereof to the end purposes of the then Fiscal Year. For the purpose of computing Debt Service Coverage Ratio on any Additional foregoing, no Indebtedness to be incurred as Variable Rate Indebtedness, the amount of Annual Debt Service on such Variable Rate Indebtedness shall will be deemed to be subordinated in right of payment to any other Indebtedness of the average interest rate on Company or any Guarantor solely by virtue of such Variable Rate Indebtedness had it been outstanding and calculated during being unsecured or by virtue of the 12 months prior to its incurrencefact that the holders of such Indebtedness have entered into one or more intercreditor agreements giving one or more of such holders priority over the other holders in the collateral held by them.