Indebtedness of the Borrower and its Restricted Subsidiaries. The Borrower shall not, and shall cause each of its Restricted Subsidiaries not to, create, assume, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, any Indebtedness except: (a) The Obligations; (b) Current accounts payable, accrued expenses and customer advance payments incurred in the ordinary course of business; (c) Senior Unsecured Debt; (d) Capitalized Lease Obligations and secured and unsecured Indebtedness for Money Borrowed in addition to other Indebtedness permitted under this Section 7.1 in an aggregate amount not to exceed $100,000,000; (e) Subordinated Debt; (f) Indebtedness secured by Permitted Liens described in clauses (g), (h) and (j) of the definition of "Permitted Liens"; (g) Obligations under Hedge Agreements incurred in the ordinary course of business and consistent with prudent business practice; (h) Indebtedness of the Borrower or any of its Wholly Owned Restricted Subsidiaries to the Borrower or any other Wholly Owned Restricted Subsidiary, and Indebtedness expressly permitted under Section 7.5 hereof; and (i) Indebtedness representing replacement, renewal, extension, refinancing or refunding of the foregoing; provided, however, that such Indebtedness does not exceed the principal amount of outstanding or committed Indebtedness so replaced, renewed, extended, refinanced or refunded plus financing fees and other expenses associated therewith; provided further, however, that (A) such replacing, renewing, extending, refinancing or refunding Indebtedness shall have no mandatory repayments or redemptions prior to the Indebtedness being replaced, renewed, extended, refinanced or refunded and (B) in the case of any replacing, renewing, extending, refinancing or refunding of Indebtedness pari passu to the Obligations hereunder, the replacing, renewing, extending, refinancing or refunding Indebtedness is made pari passu or subordinated to the Obligations hereunder and, in the case of any replacing, renewing, extending, refinancing or refunding of Indebtedness subordinated to the Obligations hereunder, the replacing, extending, refinancing or refunding Indebtedness is made subordinate to the Obligations hereunder to substantially the same or a greater extent as the Indebtedness replaced, renewed, extended, refinanced or refunded.
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Indebtedness of the Borrower and its Restricted Subsidiaries. The Borrower shall not, and shall cause each not permit any of its Restricted Subsidiaries not to, create, assume, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, any Indebtedness exceptexcept that the Borrower and its Restricted Subsidiaries may incur the following Indebtedness:
(a) The the Obligations;
(b) Current accounts payableIndebtedness of the Borrower or of any of its Restricted Subsidiaries owing to the Borrower or any other Restricted Subsidiary so long as such Indebtedness is (i) owing by a Credit Party to another Credit Party, accrued expenses (ii) owing by a non-Credit Party Restricted Subsidiary to a Credit Party to the extent permitted under Section 7.6, (iii) owing by a non-Credit Party Restricted Subsidiary to another non-Credit Party Restricted Subsidiary, or (iv) subordinated to the Obligations in a manner satisfactory to the Administrative Agent and customer advance payments the corresponding debt instruments, if any, held by the Borrower or a Guarantor are pledged to the Administrative Agent as security for the Obligations;
(c) Capital Lease Obligations and Indebtedness incurred to finance the purchase, construction or development of fixed assets and Indebtedness secured by purchase money Liens permitted under clause (f) of the definition of Permitted Liens not to exceed in the aggregate at any one time outstanding $10,000,000the greater of $15,000,000 and 16.5% of LTM EBITDA;
(i) Guaranties by the Borrower of Indebtedness of a Restricted Subsidiary of the Borrower and Guaranties by a Restricted Subsidiary of the Borrower of Indebtedness of the Borrower or any other Restricted Subsidiary of the Borrower, in each case, to the extent such Indebtedness is permitted to be incurred pursuant to this Section 7.1; provided, that if the Indebtedness that is being Guaranteed is unsecured and/or subordinated to the Obligations, the Guaranty shall also be unsecured and/or subordinated; (ii) Guaranties incurred in the ordinary course of business and which are not Indebtedness for Money Borrowed; (iii) Guaranties permitted under Section 7.5 and (iv) Guaranties that are Investments permitted under Section 7.6.
(e) (i) Interest Hedge Agreements entered into in order to manage existing or anticipated interest rate risks not for speculative purposes and (ii) Other Hedging Agreements entered into for bona fide hedging activities and not for speculative purposes;
(f) Guaranty obligations incurred in the ordinary course of business in respect of obligations of suppliers, customers, franchisees, lessors (including guaranties of real estate leases) and licensees of the Borrower and its Restricted Subsidiaries;
(g) Indebtedness outstanding on the date hereofRestatement Effective Date and listed on Schedule 7.1 and any Permitted Refinancing Indebtedness with respect thereto;
(h) Indebtedness of a Person at the time such Person was acquired pursuant to a Permitted Acquisition (so long as such Indebtedness was not incurred in anticipation of such the Borrower or any Restricted Subsidiary (i) assumed in connection with any Permitted Acquisition (provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition) or any Permitted Refinancing thereof or (ii) incurred to finance any Permitted Acquisition or any Permitted Refinancing thereof; provided that after giving effect to such Permitted Acquisition and the assumption or incurrence of such Indebtedness, as applicable, on a Pro Forma Basis the aggregate principal amount of such Indebtedness (which for the avoidance of doubt does not include unsecured indemnification obligations, Earn-Outs, adjustments of purchase price or any other contingent obligations (whether or not such contingency has been satisfied subsequent to the consummation of such Permitted Acquisition)) does not exceed the sum of (x) the greater of $13,500,000 and 15% of LTM EBITDA, in each case determined at the time of incurrence thereof, plus (y) an additional amount of such Indebtedness so long as the Consolidated Total Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.5 and without netting the cash proceeds of any such Indebtedness for the purposes of such calculation) as of the last day of the most recently ended Test Period is no greater than the greater of (x) 4.50:1.00 (or, in the case of secured Indebtedness, 4.00:100) and (y) the Consolidated Total Net Leverage Ratio immediately prior to the consummation of such Permitted Acquisition) in an; provided that the aggregate outstanding principal amount not to exceed $15,000,000 in the aggregate for all such Persons atof any such Indebtedness assumed or incurred by a Restricted Subsidiary that is not a Credit Party shall not exceed any one time outstanding the sum of (A) the greater of $18,000,000 and 20% of LTM EBITDA and (B) the then applicable Non-Credit Party Debt Basket Amount;
(i) unsecured Indebtedness incurred by the Borrower or a Guarantor under customary agreements consisting of indemnification, seller notes, earn-outsEarn-Outs, adjustment of purchase price or other similar obligations entered into in connection with Permitted Acquisitions and asset dispositionsDispositions permitted hereunder; provided, however, that the aggregate principal amount of such seller notes or similar obligations outstanding (which for the avoidance of doubt does not include indemnification obligations, earn-outsEarn-Outs, adjustments of purchase price or any other contingent obligations (whether or not such contingency has been satisfied subsequent to the consummation of such Permitted Acquisition)) shall not exceed $3,000,0004,500,000 at any time;
(j) cash management obligations (including, credit cards, credit card processing, debit or purchase cards) and other Indebtedness in respect of netting services, overdraft protection and similar arrangements, in each case, in connection with cash management and deposit accounts;
(k) Indebtedness under performance bonds or reimbursement obligations with respect to letters of credit with respect to workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance of the Borrower or its Restricted Subsidiaries, in each case incurred in the ordinary course of business;
(c) Senior Unsecured Debt;
(d) Capitalized Lease Obligations and secured and unsecured Indebtedness for Money Borrowed in addition to other Indebtedness permitted under this Section 7.1 in an aggregate amount not to exceed $100,000,000;
(e) Subordinated Debt;
(fl) Indebtedness secured by Permitted Liens described in clauses (g), (h) and (j) of the definition Borrower and its Restricted Subsidiaries in respect of "Permitted Liens";
(g) Obligations under Hedge Agreements incurred performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business including those incurred to secure health, safety and consistent with prudent business practiceenvironmental obligations in the ordinary course of business;
(hm) Indebtedness representing deferred compensation or reimbursable expenses owed to employees, officers, consultants and directors of the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(n) Indebtedness of the Borrower or any of its Wholly Owned Restricted Subsidiaries to the Borrower or any other Wholly Owned Restricted Subsidiary, and Indebtedness expressly permitted under Section 7.5 hereof; and
as an account party in respect of (i) trade letters of credit issued in the ordinary course of business, and (ii) trade accounts payable and accrued expenses incurred in the ordinary course of business;
(o) Indebtedness representing replacementowed to an insurance company or an affiliate thereof for the financing of insurance premiums;
(p) Indebtedness of Foreignnon-Credit Party Restricted Subsidiaries in an aggregate outstanding principal amount not to exceed $5,000,000 at any time outstandingthe greater of $18,000,000 and 20% of LTM EBITDA; provided that any such Indebtedness denominated in a currency other than U.S. Dollars will, renewalfor purposes of this clause (p), extension, refinancing or refunding be deemed to be outstanding in an amount equal to the U.S. Dollar equivalent of the foregoingamount thereof at the time of incurrence;
(q) other Indebtedness of the Borrower and its DomesticRestricted Subsidiaries not to exceed in the aggregate principal amount at any one time outstanding the greater of (x) $10,000,000 and (y) 15% of Consolidated EBITDA; provided, however, and13,500,000 and 15% of LTM EBITDA; provided that such the aggregate outstanding principal amount of Indebtedness does of non-Credit Party Restricted Subsidiaries incurred pursuant to this clause (q) at any one time outstanding shall not exceed the greater of $6,750,000 and 7.5% of LTM EBITDA;
(r) Indebtedness incurred pursuant to a Receivables Facility permitted hereunder; provided that the Attributable Receivables Indebtedness thereunder, together with the aggregate face amount of Receivables sold for the most recently ended four (4) consecutive Fiscal Quarters pursuant to Factoring Transactions under Section 7.4(a)(vi), shall not exceed $20,000,000the greater of $30,000,000 and 33% of LTM EBITDA at any time outstanding.;
(a) Indebtedness of the Borrower and/or any Restricted Subsidiary so long as, after giving effect thereto, (i) such Indebtedness ranks pari passu with or junior to any then-existing tranche of Term Loans in right of payment and/or security or is unsecured in an aggregate outstanding principal amount of outstanding or committed Indebtedness so replaced, renewed, extended, refinanced or refunded plus financing fees and other expenses associated therewith; provided further, however, not to exceed an amount such that (A) if such replacingIndebtedness ranks pari passu in right of payment and lien priority to the Obligations, renewingthe First Lien Net Leverage Ratio shall be less than or equal 4.00:1.00, extending(B) if such Indebtedness ranks junior in right of lien priority, refinancing the Secured Net Leverage Ratio shall be less than or refunding equal to 4.25:1.00 or (C) if such Indebtedness is unsecured, the Consolidated Total Net Leverage Ratio shall have no mandatory repayments be less than or redemptions equal to 4.50:1.00 in each case, determined on a Pro Forma Basis as of the last day of the Fiscal Quarter most recently ended (for which financial statements are available) prior to the date of the incurrence of the applicable Indebtedness, as if such Indebtedness being replacedhad been incurred (and, renewedif incurred to finance a Permitted Acquisition, extendedInvestment, refinanced Restricted Purchase or refunded Restricted Payment, such transaction had been consummated) on the first day of the applicable Test Period and calculated (x) without netting any of the cash proceeds of any such Indebtedness in calculating such ratio; provided that to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness, and (By) in the case of any replacingrevolving Indebtedness, renewingassuming the full utilization thereof, extendingwhether or not actually utilized, refinancing or refunding of (ii) any such Indebtedness pari passu to the Obligations hereunder, the replacing, renewing, extending, refinancing or refunding Indebtedness that is made pari passu secured or subordinated to the Obligations hereunder andshall be subject to an Acceptable Intercreditor Agreement, (iii) prior to the second anniversary of the Restatement Effective Date, in the case event that the interest rate margins for any Pari Passu Indebtedness (in the form of term loan obligations) incurred pursuant to this clause (s) are higher than the interest rate margins for any replacingexisting Term Loans(including any Extended Term Loans) by more than 50 basis points, renewing, extending, refinancing or refunding of Indebtedness subordinated then the interest rate margins for such existing Term Loans shall be increased to the Obligations hereunderextent necessary so that the interest rate margins for such existing Term Loans are equal to the interest margins for such Pari Passu Indebtedness minus 50 basis points; provided, that, in determining the interest rate margins applicable to the Pari Passu Indebtedness (in the form of term loan obligations) and the existing Term Loans (A) original issue discount or upfront fees (which shall be deemed to constitute like amounts of original issue discount) payable by the Borrower to the existing Term Lenders or any such Pari Passu Indebtedness in the initial primary syndication thereof shall be included (with original issue discount being equated to interest based on assumed four-year life to maturity or, if shorter, the replacingactual Weighted Average Life to Maturity), extending(B) customary arrangement, refinancing structuring, underwriting, commitment, amendment or refunding similar fees payable in connection with this Agreement or any Incremental Term Loans shall be excluded (regardless of whether paid in whole or in part to all Lenders), and (C) if the Pari Passu Indebtedness (in the form of term loan obligations) includes an interest rate floor greater than the interest rate floor applicable to the existing Term Loans, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the existing Term Loans shall be required, to the extent an increase in the interest rate floor in the existing Term Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor (but not the interest rate margin) applicable to the existing Term Loans shall be increased by such increased amount, (iv) the final maturity date with respect to such Indebtedness shall be no earlier than the Latest Maturity Date, (v) the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of the outstanding Term Loans at such time, (vi) to the extent such Indebtedness is made subordinate secured, it may not be secured by any assets other than the Collateral, (vii) to the Obligations hereunder extent such Indebtedness is Guaranteed, it shall not be Guaranteed by any Person other than one or more Credit Parties and (viii) to substantially the same or extent any such Indebtedness is incurred by a greater extent as Restricted Subsidiary that is not a Credit Party, the aggregate outstanding principal amount of all such Indebtedness replacedshall not exceed the then applicable Non-Credit Party Debt Basket Amount, renewed, extended, refinanced or refunded.and (b) any Permitted Refinancing thereof;
(t) any Credit Agreement Refinancing Debt permitted pursuant to the terms of this Agreement; and
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Sources: Amendment and Restatement Agreement (Whole Earth Brands, Inc.)