172
Fixed Charge Coverage Ratio for the Issuer's most recently ended four full fiscal quarters 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, as the case may be, would have been at least 2.25 to 1.0, determined on a
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 the preferred stock had been issued, as the case may be, at the beginning of
such four-quarter period.
The first paragraph of this covenant will not prohibit the incurrence of any of the following items of Indebtedness or
issuances of Disqualified Stock or preferred stock (collectively, "
Permitted Debt
"):
(1)
the incurrence by the Issuer and any Restricted Subsidiary of additional Indebtedness under Credit Facilities in
an aggregate principal amount at any one time outstanding under this clause (1) not to exceed the greater of (a)
$150.0 million and (b) 20.0% of Adjusted Consolidated Net Tangible Assets determined as of the date of the
incurrence of such Indebtedness after giving
pro forma
effect to such incurrence and the application of the
proceeds therefrom; plus, in the case of any refinancing of any Indebtedness permitted under this clause (1) or
any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and
expenses incurred in connection with such refinancing;
(2)
the incurrence by the Issuer or any Restricted Subsidiaries of the Existing Indebtedness;
(3)
the incurrence (x) by the Issuer of Indebtedness represented by the Notes (other than Additional Notes) and (y)
by any Guarantor of Indebtedness represented by a Note Guarantee;
(4)
the incurrence by the Issuer or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease
Obligations, mortgage financings or purchase money obligations or other Indebtedness, in each case, incurred
for the purpose of financing all or any part of the purchase price, lease expense, charter expense, rental
payments or cost of design, development, construction, transportation, installation, migration or improvement of
property, plant or equipment or other assets used in the business of the Issuer or any of its Restricted
Subsidiaries (including any reasonably related fees or expenses incurred in connection therewith) (it being
understood that any such Indebtedness may be incurred after the acquisition or purchase or the construction,
installation or the making of any improvement with respect to any such property, plant or equipment or other
assets), in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to extend,
renew, refund, refinance, replace, exchange, defease or discharge any Indebtedness incurred pursuant to this
clause (4), not to exceed the greater of (x) $15.0 million and (y) 2.1% of Adjusted Consolidated Net Tangible
Assets at any time outstanding;
(5)
the incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, exchange,
defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by the
Indenture to be incurred under the first paragraph of this covenant or clauses (2), (3) or (15) of this paragraph or
this clause (5);
(6)
the incurrence by the Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or
among the Issuer and any of its Restricted Subsidiaries;
provided,
however,
that:
(a)
if the Issuer or any Guarantor is the obligor on such Indebtedness and the payee is not the Issuer or a
Guarantor, such Indebtedness must be ((i) except in respect of the intercompany current liabilities
incurred in the ordinary course of business in connection with the cash management operations of the
Issuer and its Restricted Subsidiaries and (ii) only to the extent legally permitted) 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 Issuer, or the Note Guarantee, in the case of a Guarantor; and
(b)
(i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being
held by a Person other than the Issuer or a Restricted Subsidiary of the Issuer and (ii) any sale or other
transfer of any such Indebtedness to a Person that is not either the Issuer or a Restricted Subsidiary of
the Issuer will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Issuer
or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (6);
(7)
the issuance by any of the Issuer's Restricted Subsidiaries to the Issuer or to any of its Restricted Subsidiaries of
shares of preferred stock;
provided, however,
that:
(a)
any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being
held by a Person other than the Issuer or a Restricted Subsidiary of the Issuer; and
(b)
any sale or other transfer of any such preferred stock to a Person that is not either the Issuer or a
Restricted Subsidiary of the Issuer, will be deemed, in each case, to constitute an issuance of such
preferred stock by such Restricted Subsidiary that was not permitted by this clause (7);
(8)
the incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations not for speculative
purposes (as determined in good faith by a responsible financial or accounting officer of the Issuer);
