Indebtedness. Incur, create or assume any Indebtedness, except: (a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof; (b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness; (c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes; (d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt; (e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence; (f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions; (g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business; (i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business; (i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million; (j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments); (k) [Reserved]; (l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04; (m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness; (n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated; (o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition; (p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit; (q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business; (r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million; (s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04; (t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements; (u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business; (v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; (w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents; (x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06; (y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business; (z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder; (aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date; (bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and (cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 3 contracts
Sources: Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.), Revolving Credit Agreement (AZEK Co Inc.)
Indebtedness. IncurCreate, create incur, assume or assume suffer to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofunder the Loan Documents;
(b) Indebtedness created hereunder or under outstanding on the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments date hereof and listed on Schedule 7.03 and any unsecured refinancings, refundings, renewals or extensions thereof; provided that (i) the terms and conditions of such extensions, renewals or refinancings of such Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any do not, in the Administrative Agent’s reasonable judgment, materially impair the prospects of repayment of the foregoing Obligations by the Borrowers or impair any Borrower’s creditworthiness and (ii) such extensions, renewals or refinancings of such Indebtedness do not result in an increase in the principal amount of such Indebtedness so extended, renewed or refinanced or add any Borrower as liable with respect thereto if such Borrower was not liable with respect to the original Indebtedness;
(c) Indebtedness pursuant of any Borrower to Hedge Agreements any Subsidiary and of any Subsidiary to any Borrower or any other than for speculative purposesSubsidiary;
(d) (i) so long as no Default Guarantees of the Borrowers or Event any Subsidiary in respect of Default has occurred and is continuing Indebtedness otherwise permitted hereunder of the Borrowers or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtconsolidated Subsidiary;
(e) obligations (contingent or otherwise) of the Borrowers or any Subsidiary existing or arising under any Swap Contract (including any total rate of return Swap Contract);
(f) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the any Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, provided in the ordinary course of ordinary business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(h) Unsecured Indebtedness;
(i) Indebtedness in respect Letter of Cash Management Services in the ordinary course of businessCredit Obligations, up to a maximum amount outstanding at any time not greater than $10,000,000;
(iij) other Indebtedness arising from the occasional honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) funds in the ordinary course of business and not in connection with from an overdraft credit facility granted by the borrowing of money bank or any Hedge Agreementsother financial institution;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofother Secured Indebtedness; and
(ccl) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Trust Preferred Indebtedness and such item related Trust Preferred Guarantees and Trust Preferred Securities incurred, executed or issued respectively, as part of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausea Trust Preferred Securities Transaction.
Appears in 3 contracts
Sources: Credit Agreement (KKR Financial Corp), Credit Agreement (KKR Financial Corp), Credit Agreement (KKR Financial Holdings LLC)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any (i) the Existing Notes, (ii) [reserved] and (iii) other Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary of the Borrower);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower and its Relevant Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any Relevant Subsidiary of the other Restricted Subsidiaries Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case, Person in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower and or any Relevant Subsidiary owing to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is extent permitted under by Section 6.04(b) and (ii) 6.04, provided that Indebtedness owing by the Borrower or of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, ;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Relevant Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Relevant Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that exists at the time of such acquisition, merger, amalgamation or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement, provided that the incurrence or assumption aggregate principal amount of any such Indebtedness pursuant to clause (i) above (at the time of, and after giving effect theretoto, such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), the aggregate outstanding amount paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), would not exceed the greater of (i) $100.0 125.0 million and (ii) 7.02.0 % of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable, for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, 5.04 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that ;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Borrower or any Relevant Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of such Indebtedness this Section 6.01, this paragraph (i) and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k6.03) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 125.0 million and (ii) 9.02.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Indebtedness consisting Capital Lease Obligations incurred by the Borrower or any Relevant Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(ik) Term Loan Obligations other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(k) not in excess of (A) the greater of $625.0 100.0 million plus (B) the aggregate principal amount and 1.5 % of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessConsolidated Total Assets;
(nl) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as by any Liens securing the Term Loan Obligations Party or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Relevant Subsidiary of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement; provided, (iii) of Indebtedness otherwise permitted hereunder of any Restricted that a Relevant Subsidiary that is not a Loan Party shall not be permitted to Guarantee Indebtedness of a Loan Party pursuant to this sub-clause (i) unless such Relevant Subsidiary becomes (and remains) a Guarantor hereunder while such Guarantee is outstanding, (ii) by the Borrower or any Relevant Subsidiary of Indebtedness of any Subsidiary that is not a Loan Party to the extent such Guarantees are permitted by Section 6.04 6.04, (other than Section 6.04(t)); (iviii) by any Restricted Relevant Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (viv) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(k) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)p); provided that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(om) Indebtedness arising from agreements of the Borrower or any Relevant Subsidiary of the other Restricted Subsidiaries Borrower providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(pn) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(qo) Indebtedness consisting of Permitted Junior Debt;
(ip) the financing Indebtedness of insurance premiums Relevant Subsidiaries that are Foreign Subsidiaries (including letters of credit or bank guarantees (iiother than Revolving Letters of Credit issued pursuant to Section 2.05) take or pay obligations contained in supply arrangements, in each case, for working capital purposes incurred in the ordinary course of businessbusiness on ordinary business terms in an aggregate amount not to exceed the greater of $25.0 million and 0.5% of Consolidated Total Assets outstanding at any time);
(r) (i) so long as no Default Indebtedness incurred and/or assumed in connection with Section 6.04(j) or Event of Default has occurred and is continuing or would result from 6.04(q); provided that the incurrence aggregate amount of such Indebtedness, other Indebtedness so long as outstanding pursuant to this Section 6.01(q) shall not exceed the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) of $150.0 million and 2.5% of Consolidated Total Assets and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofIndebtedness; and
(ccr) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbq) of this Section 6.01above. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (Bi) in the event that an item of Indebtedness (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category more than one of Permitted the categories of Indebtedness described permitted in this Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb))6.01, the Borrower mayor a Relevant Subsidiary, as the case may be, in its sole discretion, reclassify may classify, at the time of incurrence, such item of Indebtedness (or any portion thereof) in any such category and will only be required to include such Indebtedness (or any portion thereof) in one of the categories of Indebtedness permitted in this Section 6.01; and (ii) at the time of incurrence, the Borrower or a Relevant Subsidiary, as the case may be, in its sole discretion, may divide and classify an item of Indebtedness shall be treated as having been incurred (or existing pursuant to such other clauseany portion thereof) in more than one of the categories of Indebtedness permitted in this Section 6.01.
Appears in 3 contracts
Sources: Amendment (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) Indebtedness existing on the date hereof and set forth in Schedule 6.01, but not any extensions, renewals or replacements of such Indebtedness listed except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as the same are in effect on Schedule 6.01(athe date of this Agreement and (ii) refinancings and extensions of any Permitted Refinancing such Indebtedness if the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended, provided that such extending, renewal or replacement Indebtedness shall not be (A) Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced or (B) in respect thereofa principal amount which exceeds the Indebtedness being renewed, extended or refinanced (plus unpaid accrued interest and premium thereon);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposesin the case of the Guarantors, the Guarantees under the Guarantee Agreements;
(d) (i) so long as no Default or Event Indebtedness of Default has occurred the Borrower and is continuing or would result from its Subsidiaries pursuant to Interest Rate Protection Agreements entered into in order to fix the incurrence effective rate of such interest on the Loans and other Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, provided that such transactions shall be entered into to hedge actual interest rate exposures and not for the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtpurpose of speculation;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ worker's compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any Subsidiary of the other Restricted Subsidiaries Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by of the Borrower or any Restricted Subsidiary of the Borrower that is a Guarantor to any Subsidiary of the Borrower or to the Borrower, (ii) Indebtedness of the Borrower or any Subsidiary of the Borrower that is not a Loan Party Guarantor to any Subsidiary of the Borrower that is not a Guarantor; and (iii) Indebtedness of any Subsidiary to the Borrower or another any Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by of the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations arising from an investment made pursuant to customary subordination provisionsSection 6.04;
(g) intercompany Indebtedness resulting from investments made pursuant to Sections 6.04(a), (h), (j), (k), (l) and/or (n);
(h) Indebtedness of the Borrower or its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees similar obligations and similar obligationstrade-related letters of credit, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness and any extension, renewal or refinancing thereof to the extent that the amount of refinancing Indebtedness is not greater than the amount of Indebtedness being refinanced;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered funds in the ordinary course of business, provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(ij) Indebtedness incurred of a Subsidiary of the Borrower acquired after the date hereof and Indebtedness of a corporation merged or consolidated with or into the Borrower or a Subsidiary of the Borrower after the date hereof and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger, consolidation or conversion into a Subsidiary of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 and is not created in contemplation of Ratio Debtsuch event and where such acquisition, (3)(x) if such Indebtedness incurred merger or assumed consolidation is First Lien Debtpermitted by this Agreement, provided that the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption aggregate principal amount of Indebtedness and under this paragraph (iij) (including the amount of any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount last parenthetical of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
paragraph (j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement of Section 6.01) shall not at any time outstanding exceed $40,000,000 for the Borrower and removal all of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, its Subsidiaries (it being understood and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any agreed that Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that refinance Indebtedness otherwise permitted under this paragraph (i) such Indebtedness j), or refinancings thereof previously effected pursuant to this parenthetical, shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepaymentspermitted);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred pursuant to this clause (l) shall not exceed, at by the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as Borrower or any Subsidiary of the end Borrower prior to or within 270 days after the acquisition or improvement of the fiscal quarter immediately prior respective asset permitted under this Agreement in order to the date of finance such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations acquisition or improvement, and extensions, renewals and refinancings thereof, in an aggregate principal amount outstanding at any time not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt20,000,000, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) refinancing Indebtedness supported by a Letter of Credit, in a principal amount shall not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) be (i) Indebtedness of Foreign Subsidiaries and an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to which exceeds the Net Cash Proceeds received from the issuance Indebtedness being renewed, extended or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) refinanced or (bbiii) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.additionally secured;
Appears in 3 contracts
Sources: Credit Agreement (Graham Packaging Holdings Co), Credit Agreement (Graham Packaging Holdings Co), Credit Agreement (Graham Packaging Co)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any (i) Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a6.01 (excluding Indebtedness under clause (ii) of this clause (a) and clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary of the Borrower) and (ii) Indebtedness under the Parent Subordinated Note on the Closing Date;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower and its Relevant Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.12;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any Relevant Subsidiary of the other Restricted Subsidiaries Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of businessPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower and or any Relevant Subsidiary owing to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is extent permitted under by Section 6.04(b) and (ii) 6.04, provided that Indebtedness owing by the Borrower or of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Relevant Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Relevant Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger, amalgamation or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger, amalgamation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; , provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect theretoto, such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), the aggregate outstanding amount paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), would not exceed the greater of (i) $100.0 U.S.$30.0 million and (ii) 7.05.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable, for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that ;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Borrower or any Relevant Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of such Indebtedness this Section 6.01, this paragraph (i) and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k6.03) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 U.S.$30.0 million and (ii) 9.05.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Indebtedness consisting Capital Lease Obligations incurred by the Borrower or any Relevant Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(ik) Term Loan Obligations other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(k) not in excess of (A) $625.0 the greater of U.S.$30.0 million plus (B) the aggregate principal amount and 5.5% of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessConsolidated Total Assets;
(nl) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as by any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iiiii) by the Borrower or any Relevant Subsidiary of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 6.04, (other than Section 6.04(t)); (iviii) by any Restricted Relevant Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (viv) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(k) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)p); provided that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(om) Indebtedness arising from agreements of the Borrower or any Relevant Subsidiary of the other Restricted Subsidiaries Borrower providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(pn) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(qo) Indebtedness consisting of Permitted Junior Debt;
(ip) the financing Indebtedness of insurance premiums Relevant Subsidiaries that are Foreign Subsidiaries (including letters of credit or bank guarantees (iiother than Revolving Letters of Credit issued pursuant to Section 2.05) take or pay obligations contained in supply arrangements, in each case, for working capital purposes incurred in the ordinary course of businessbusiness on ordinary business terms in an aggregate amount not to exceed the greater of U.S.$5.0 million and 1% of Consolidated Total Assets outstanding at any time);
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from Indebtedness incurred and/or assumed in connection with Section 6.04(j); provided that the incurrence aggregate amount of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 outstanding pursuant to 1.00 or greater (“Ratio Debt”this Section 6.01(q) shall not exceed U.S.$50.0 million and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofIndebtdness; and
(ccr) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbq) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 3 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Indebtedness. Incur, create or assume Incur any Indebtedness, exceptIndebtedness other than:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofThe Obligations;
(b) Indebtedness created hereunder or under existing on the other Loan DocumentsRestatement Effective Date and set forth in Schedule 5.10, Credit Agreement Refinancing Indebtedness, including extensions and refinancings thereof which do not increase the principal amount of such Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any as of the foregoing Indebtednessdate of such extension or refinancing;
(c) Indebtedness pursuant not to Hedge Agreements other than for speculative purposesexceed $3,000,000 in the aggregate at any time outstanding, consisting of Capital Leases;
(d) (i) so long as no Default Unsecured intercompany Indebtedness between Borrower and a Subsidiary Guarantor or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens otherwise permitted by under Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt5.9(e);
(e) Unsecured Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted its Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, incurred in the ordinary course of business; provided that upon the incurrence business owing to an insurer consisting of Indebtedness with respect financing for insurance premiums payable by Borrower or any such Subsidiary to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrenceinsurer;
(f) intercompany Indebtedness between Rate Contracts entered into by such Person in the ordinary course of business for the purpose of hedging risks associated with liabilities, commitments, investments, assets, or among property held or reasonably anticipated by such Person, or changes in the Borrower value of securities issued by such Person, and the Restricted Subsidiaries not for purposes of pure speculation or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not taking a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions“market view”;
(g) Contingent obligations arising with respect to customary indemnification obligations in favor of sellers in connection with Permitted Franchising Acquisitions;
(h) Indebtedness arising in respect connection with endorsement of performance bondschecks, bid bonds, appeal bonds, surety bonds and completion guarantees and drafts or similar obligations, in each case, provided in the ordinary course instruments of business, including those incurred to secure health, safety and environmental obligations payment for deposit in the ordinary course of business;
(i) Indebtedness owed to any Person providing workers’ compensation, health disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such Person, in respect of Cash Management Services each case, incurred in the ordinary course of business;
(j) Indebtedness incurred in the ordinary course of business in the form of bids, tenders, statutory obligations, customary reimbursement obligations for surety bonds, performance bonds and appeal and other similar bonds which are not overdue and not involving borrowed money;
(iik) other Indebtedness not to exceed $50,000 in the aggregate at any time arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business, or pursuant to netting services or otherwise in connection with deposit accounts, in each case, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(ccl) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Additional unsecured Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) exceed $500,000 in the event that an item of Indebtedness (other than aggregate at any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausetime outstanding.
Appears in 3 contracts
Sources: Credit Agreement (Zoe's Kitchen, Inc.), Credit Agreement (Zoe's Kitchen, Inc.), Credit Agreement (Zoe's Kitchen, Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) created hereunder and any Permitted Refinancing Indebtedness in respect thereofunder the other Loan Documents;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred pursuant to Refinance any of the foregoing IndebtednessSwap Agreements permitted by Section 6.11;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including or self-insurance) insurance or other similar obligations to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 60 days following such incurrence;
(fd) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; any other Subsidiary (including pursuant to the Intercompany Note), provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party to the Borrower or another Subsidiary Loan Party is Parties shall be permitted under Section 6.04(b) 6.04 and (ii) Indebtedness owing by of the Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant to customary the subordination provisionsterms set forth in the Intercompany Note;
(ge) Indebtedness in respect of performance bondsbids, bid bondstrade contracts (other than for debt for borrowed money), leases (other than Capital Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, surety bonds performance, performance and completion and return of money bonds, government contracts, financial assurances and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness (including letters of credit, bank guarantees or similar instruments in lieu of such items to support the issuance thereof);
(if) Cash Management Obligations (as defined in the First Lien Credit Agreement) and other Indebtedness in respect of Cash Management Services in the ordinary course of businessnetting services, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or overdraft protection and similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; providedarrangements, in each case, in connection with cash management and deposit accounts;
(1g) no Event of Default shall have occurred and be continuing immediately before such (i) Indebtedness assumed or acquired in connection with Permitted Business Acquisition or would result immediately after giving pro forma effect to Acquisitions, which Indebtedness in each case, exists at the time of such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 is not created in contemplation of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debtevent, the First Lien Leverage Ratio shall aggregate principal amount thereof at the time of such acquisition or assumption together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (g) and the Remaining Present Value of leases permitted under Section 6.03 does not exceed the Closing Date First Lien Leverage Ratio greater of (x) $86.25 million and (y) if such Indebtedness incurred an amount equal to 11.5% of the consolidated revenues of the Borrower and its Restricted Subsidiaries for the period of four fiscal quarters most recently ended on or assumed is secured Indebtedness other than First Lien Debt, prior to the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption date of Indebtedness determination for which financial statements are available; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided ;
(h) Capital Lease Obligations, mortgage financings and purchase money Indebtedness (including any industrial revenue bond, industrial development bond and similar financings) incurred by the Borrower or any Restricted Subsidiary prior to or within 270 days after the acquisition, lease, repair or improvement of the respective asset in order to finance such acquisition, lease, repair or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect thereto)to, the aggregate incurrence thereof (together with Indebtedness outstanding amount pursuant to paragraph (g) of Indebtedness incurred under this Section 6.01(i6.01, this paragraph (h) together with any amounts incurred and the Remaining Present Value of leases permitted under Section 6.01(r), in each case, by 6.03) would not exceed the greater of (x) $86.25 million and (y) an amount equal to 11.5% of the consolidated revenues of the Borrower and its Restricted Subsidiaries for the period of four fiscal quarters most recently ended on or prior to the date of determination for which financial statements are available;
(i) Capital Lease Obligations incurred by the Borrower or any Restricted Subsidiary in respect of any Sale and Lease-Back Transaction that are not Guarantors does not exceed $50.0 millionis permitted under Section 6.03;
(j) Capital Lease Obligations, First Lien Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause paragraph (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicablej), (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); or (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness Holdings and its Subsidiaries to the extent, in the case of another Restricted Subsidiary that is not a Loan Party clauses (iii) and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent iv), such Guarantees are permitted by Section 6.04 6.04(b), (other than Section 6.04(tj), (m), (o) or (q); provided that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(k) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person the Obligations shall be expressly subordinated to the Obligations on terms not materially less favorable to at least the same extent Lenders as those contained in the subordination of such underlying other Indebtedness is subordinatedto the Obligations;
(ol) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment acquisition or the disposition of any business, business or assets (including Equity Interests of Subsidiaries) of the Borrower or Subsidiaries not prohibited any Subsidiary permitted by this AgreementSection 6.04 or Section 6.05, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, business or assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisitionacquisition;
(pm) Indebtedness supported by a Letter letter of Creditcredit, in a principal amount not in excess of under the stated amount of such Letter of CreditFirst Lien Credit Agreement;
(qn) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(ri) Permitted Debt Securities and (ii) Permitted Refinancing Indebtedness in respect thereof; provided that, in the case of clause (i) so long as ), after giving effect to any such incurrence, no Default or Event of Default has shall have occurred and is be continuing or would result from and the incurrence of such Indebtedness, other Indebtedness so long as Borrower shall be in compliance with the Fixed Charge Coverage Ratio, Total Leverage Ratio on a Pro Forma Basis;
(p) other Indebtedness of the Borrower or any Restricted Subsidiary, is 2.00 in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the sum of $57.5 million plus the amount by which (A) the greater of (x) $86.25 million and (y) an amount equal to 1.00 11.5% of the consolidated revenues of the Borrower and its Restricted Subsidiaries for the period of four fiscal quarters most recently ended on or greater prior to the date of determination for which financial statements are available exceeds (“Ratio Debt”B) the sum of all Indebtedness outstanding pursuant to paragraphs (h) and (iii) of this Section 6.01 plus the Remaining Present Value of leases permitted under Section 6.03;
(q) Indebtedness existing on the Closing Date and set forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time Indebtedness;
(r) letters of the incurrence credit or bank guarantees (other than letters of any Indebtedness credit issued pursuant to clause (ithe First Lien Credit Agreement) above (and after giving effect thereto), the having an aggregate outstanding face amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not to exceed $50.0 million17.25 million outstanding at any time;
(s) Indebtedness incurred by the Borrower and its Restricted Subsidiaries representing (i) Indebtedness deferred compensation to directors, officers, employees, members of Foreign Subsidiaries management and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence consultants of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) person in the ordinary course of business and not or (ii) deferred compensation or other similar arrangements in connection with the borrowing of money Transactions or any Hedge AgreementsPermitted Business Acquisition;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(xt) Indebtedness consisting of promissory notes issued by the Borrower or any other and its Restricted Subsidiary Subsidiaries to current or former directors, officers, managers, directors and consultants thereof or employees, members of management or consultants of such person (or their respective estates estate, heirs, family members, spouse or family members former spouse) to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.066.05;
(yu) Guarantees by the Borrower Indebtedness in respect of letters of credit, bankers’ acceptances supporting trade payables, warehouse receipts or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property similar facilities entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(ccv) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations Indebtedness described in clauses paragraphs (a) through (bbu) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 2 contracts
Sources: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) Indebtedness existing on the Closing Date (provided, that any such Indebtedness listed that is (x) not intercompany Indebtedness and (y) in excess of $2,000,000 shall be set forth on Schedule 6.01(a6.01 to the Original Credit Agreement) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or (including pursuant to Section 2.21) and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness business or consistent with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrencepast practice or industry practices;
(fe) intercompany Indebtedness between or among of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) 6.04 and (ii) Indebtedness owing owed by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is shall be subordinated to the Loan Obligations pursuant under this Agreement on subordination terms described in the global intercompany note substantially in the form of Exhibit J to customary the Original Credit Agreement or on other subordination provisionsterms reasonably satisfactory to the Administrative Agent and the Borrower;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of businessbusiness or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness or consistent with past practice or industry practices;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered services, in each case incurred the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests, where such acquisition, merger or consolidation is not prohibited by this Agreement (including a Permitted Business Acquisition); provided, in each casethat, (1x) no Event in the case of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debtsecured by Liens on Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans, the Net First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the net cash proceeds of such Indebtedness incurred on such date against the applicable amount of Consolidated Debt for purposes of such calculation at such time), and any related transactions is (I) not greater than 4.25 to 1.00 or assumption (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto and (y) in the case of any other such Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the net cash proceeds of such Indebtedness incurred on such date against the applicable amount of Consolidated Debt for purposes of such calculation at such time), and any related transactions is (I) not greater than 4.75 to 1.00 or (II) no greater than the Total Net Leverage Ratio in effect immediately prior thereto; provided that (1) the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation (except for any seller note or other seller financing) shall be subject to the last paragraph of this Section 6.01 and (2) the aggregate outstanding principal amount of Indebtedness permitted under this clause (h)(i) incurred by a Subsidiary other than a Subsidiary Loan Party in contemplation of such acquisition, merger or consolidation, together with the aggregate principal amount of Indebtedness of a Subsidiary other than a Subsidiary Loan Party then outstanding pursuant to Section 6.01(s)(i), shall not exceed the greater of $30,000,000 and 4.25% of Consolidated Total Assets as at the end of the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause ;
(i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(ix) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that is immediately after giving effect to the subject incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed (A) the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period plus (B) any additional amounts, so long as immediately after giving effect to the incurrence of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness additional amounts under this clause (B) and the use of proceeds thereof, the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 4.75 to 1.00, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capitalized Lease Obligations incurred by the Borrower or permitted any Subsidiary in respect of any Sale and Lease-Back Transactions Transaction that is permitted under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments Permitted Refinancing Indebtedness in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(l) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of by Holdings, the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Subsidiary Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iiiii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iviii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party Party, and (viv) by the Borrower of Indebtedness of Foreign Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligationsobligations (including earn-outs), in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment other Investments or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than Guarantees obligations in respect of Indebtedness incurred by any person acquiring all other Indebtedness) in the ordinary course of business or any portion of such business, assets consistent with past practice or Subsidiaries for the purpose of financing any such Permitted Business Acquisitionindustry practices;
(p) other Indebtedness or Disqualified Stock of the Borrower or any Subsidiaries in an aggregate outstanding principal amount or liquidation preference not greater than 100.0% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or any Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries and other than Permitted Cure Securities), to the extent that such net cash proceeds do not increase the Cumulative Credit and do not constitute Excluded Contributions;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) Indebtedness secured by Liens on the Collateral ranking pari passu with the Liens on the Collateral securing the Term B Loans so long as (x) at the time of incurrence thereof, no Default or Event of Default shall have occurred and be continuing and (y) immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 4.25 to 1.00; provided that, (1) the net cash proceeds of Indebtedness incurred under this clause (r)(i) at such time shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Net First Lien Leverage Ratio at such time and (2) the incurrence of any Indebtedness pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness so long as (x) at the time of incurrence thereof, no Default or Event of Default shall have occurred and be continuing, (y) immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 4.75 to 1.00 and (z) the aggregate principal amount of Indebtedness permitted under this clause (s)(i) incurred by a Subsidiary other than a Subsidiary Loan Party, together with the aggregate principal amount of Indebtedness of a Subsidiary other than a Subsidiary Loan Party then outstanding pursuant to Section 6.01(h)(i) incurred in contemplation of an acquisition, merger or consolidation, shall not exceed the greater of $30,000,000 and 4.25% of Consolidated Total Assets as at the end of the then most recently ended Test Period; provided that, (1) the net cash proceeds of Indebtedness incurred under this clause (s)(i) at such time shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Total Net Leverage Ratio at such time and (2) the incurrence of any Indebtedness pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(u) 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; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements.
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Receivables Financings;
(x) obligations in respect of Cash Management Agreements;
(y) Refinancing Notes and any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time; provided, that (1) there shall be no obligor in respect of any such Indebtedness that is not a Loan Party and (2) the incurrence of any Indebtedness pursuant to this clause (z)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) Guarantees of Indebtedness under ordinary course customer financing lines or credit;
(bb) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisitions or any other Investment permitted hereunder;
(ee) Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower and its Subsidiaries;
(ff) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(ccgg) all premium (if any, including tender premiums)) expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.throu
Appears in 2 contracts
Sources: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed (other than intercompany Indebtedness) of the Subsidiaries existing, or incurred pursuant to facilities existing, on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in incurred to Refinance such Indebtedness or, without duplication, replacements of such facilities that would constitute Permitted Refinancing Indebtedness with respect thereofto such facilities if all Indebtedness available to be incurred thereunder were outstanding on the date of such replacement;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;;
(c) Indebtedness of the Borrower and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.12;
(d) (i) so long as no Default or Event Indebtedness of Default has occurred the Borrower and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness Subsidiaries owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, provided in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party owing to the Borrower or another any Subsidiary Loan Party is permitted under shall be subject to Section 6.04(b) 6.04, and (ii) Indebtedness owing by of the Borrower or owing to any Subsidiary and Indebtedness of any other Subsidiary Loan Party owing to any Restricted Subsidiary that is not a Subsidiary Loan Party is shall be subordinated in right of payment to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness of the Borrower and the Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, provided reasonably required in the ordinary course conduct of businessthe business (giving effect to any growth or expansion of such business permitted hereunder), including those incurred to secure health, safety safety, insurance and environmental obligations of the Borrower and its Subsidiaries as conducted in accordance with good and prudent business industry practice and otherwise as permitted by the ordinary course of businessLoan Documents;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business and in good faith; provided, so long as that (i) such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after of notification is received by to the Borrower of its incurrence incurrence; and (iiiii) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness, in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactionsconsolidation is permitted by this Agreement, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided provided, that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect thereto)to, the aggregate such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding amount pursuant to this paragraph (h) or paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), would not exceed $45,000,000 in the greater of aggregate;
(i) $100.0 million Capital Lease Obligations, mortgage financings and (ii) 7.0% of Consolidated Total Assets as of purchase money Indebtedness incurred by the end of the fiscal quarter immediately Borrower or any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property that is the subject of respective asset permitted under this Agreement in order to finance such Indebtedness and acquisition or improvement, (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof, and (iii) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, collectively, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof are subject (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01 or this paragraph (i) and the ABL/Term Loan Intercreditor Agreement (Remaining Present Value of leases permitted under Section 6.03) would not exceed $45,000,000 in the case aggregate;
(j) Indebtedness in respect of Term Loan Obligationsthe 2017 Exchange Notes and Permitted Refinancing Indebtedness with respect thereto;
(k) other Indebtedness of the Borrower or other intercreditor agreement(sany Subsidiary, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) substantially consistent with and no less favorable to not in excess of $30,000,000;
(l) Guarantees by the Lenders in Borrower or any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Subsidiary of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement; provided, that, notwithstanding anything to the contrary in this Section 6.01, (iiii) of the Borrower and the Loan Parties shall not Guarantee the Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that unless such Guarantee is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is expressly permitted to be incurred under Section 6.01(s6.04, (ii) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that any Guarantees by the Borrower or any other Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person that is subordinated in right of payment to other Indebtedness of such person shall be expressly subordinated in right of payment to the Obligations on terms not less favorable to at least the same extent as Lenders than the subordination terms of such underlying other Indebtedness, (iii) no Subsidiary shall Guarantee any Junior Indebtedness (or Permitted Refinancing Indebtedness in respect of any of the foregoing), unless such Subsidiary is subordinatedalso a Loan Party in compliance with the Collateral and Guarantee Requirement and (iv) no Subsidiary (other than Affinion Investments II) shall Guarantee the Affinion Investment Notes Documents;
(om) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition, in each case, to the extent such obligation or transaction is permitted by this Agreement;
(pn) reimbursement and similar obligations of Subsidiaries in respect of letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $12,000,000;
(o) Indebtedness of the Borrower and the Subsidiaries supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Credit Agreement (Affinion Group Holdings, Inc.), Credit Agreement (Affinion Group Holdings, Inc.)
Indebtedness. IncurBorrower will not, create and will not permit any of its Subsidiaries to, create, incur, assume or assume permit to exist any Indebtedness, whether directly or indirectly, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofthe Obligations;
(b) Indebtedness created hereunder or under existing on the other Loan Documentsdate hereof and set forth on Schedule 7.13(a) and Permitted Refinancings thereof; provided that, Credit Agreement Refinancing Indebtednessin each case, such Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred is subordinated to Refinance any of the foregoing IndebtednessObligations on terms reasonably satisfactory to the Majority Lenders;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;Permitted Priority Debt; CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
(d) accounts payable to trade creditors for goods and services and current operating liabilities (inot the result of the borrowing of money) so long as no Default incurred in the ordinary course of Borrower’s or Event of Default has occurred its Subsidiary’s business in accordance with customary terms and is continuing or would result from paid within the incurrence of such Indebtednessspecified time, other Indebtedness secured unless contested in good faith by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) appropriate proceedings and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtreserved for in accordance with GAAP;
(e) Indebtedness owed to (including obligations in respect consisting of letters guarantees resulting from endorsement of credit or bank guarantees or similar negotiable instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the collection by Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations Guarantor in the ordinary course of business;
(f) Indebtedness (i) of Borrower to any Subsidiary Guarantor and (ii) of any Subsidiary Guarantor to Borrower or any other Subsidiary Guarantor;
(g) Guarantees by Borrower of Indebtedness of any Subsidiary Guarantor and by any Subsidiary Guarantor of Indebtedness of Borrower or any other Subsidiary Guarantor; provided that such Indebtedness is permitted under this Section 9.01;
(h) normal course of business equipment financing; provided that (i) if secured, the collateral therefor consists solely of the assets being financed, the products and proceeds thereof and books and records related thereto, and (ii) the aggregate outstanding principal amount of such Indebtedness, does not exceed $2,000,000 (or the Equivalent Amount in respect other currencies) per fiscal year (the “Equipment Financing Limitation”); provided, that, to the extent Borrower and its Subsidiaries do not incur Indebtedness up to the Equipment Financing Limitation in any fiscal year, the Borrower and its Subsidiaries may carry forward 100% of Cash Management Services the unutilized portion;
(i) Permitted Subordinated Debt;
(j) Indebtedness incurred in a transaction specifically permitted under Section 9.10(d);
(k) Indebtedness approved in advance in writing by the Majority Lenders.
(l) Indebtedness incurred by Borrower or any of its Subsidiaries arising from (i) agreements providing for indemnification, adjustment of purchase price, earnouts or similar obligations, or from guarantees, surety bonds or performance bonds securing the performance of Borrower or any Subsidiary pursuant to such agreements, solely in connection with Permitted Acquisitions or permitted dispositions of any business, assets or Subsidiary, up to the amount of the Permitted Acquisitions Cap only, and (ii) letters of credit securing real property leases or entered into in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
provided that with respect to subclause (i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) above, any Permitted Refinancing such guarantee, letter of credit, surety bond or performance bond may be secured by cash collateral up to a maximum of $1,000,000 in the aggregate only, provided further that if the aggregate amount of all Indebtedness incurred with respect to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause subclause (i) above (and after giving effect theretoplus the aggregate amount of all Permitted Acquisitions exceed the Permitted Acquisitions Cap, then such excess amount may only be permitted hereunder if such Indebtedness meets the definition of “Permitted Subordinated Debt”; CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) 200.83 AND 230.406. [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION.
(m) Indebtedness consisting in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(in) Term Loan Obligations Indebtedness incurred under Hedging Agreements entered into in the ordinary course for bona fide hedging purposes consistent with GAAP and not for speculative purposes not exceeding $250,000 (or the Equivalent Amount in other currencies) at any time outstanding in the aggregate (determined on a net obligations basis); and
(o) Unsecured Indebtedness of Borrower or its Subsidiaries in an aggregate principal amount not in excess of (A) exceeding $625.0 million plus (B) the aggregate principal amount of 100,000 at any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed time outstanding in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseBorrower’s credit card program.
Appears in 2 contracts
Sources: Term Loan Agreement (Raindance Technologies Inc), Term Loan Agreement (Raindance Technologies Inc)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary); provided that intercompany Indebtedness owed to a Loan Party shall continue to be owed to a Loan Party;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness; provided that such Refinancing is accompanied by a concurrent reduction in Commitments in respect of the Indebtedness being Refinanced;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(ih) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation or amalgamation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred consolidation or assumed amalgamation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) immediately after giving effect to such acquisition, merger or consolidation or amalgamation, the time of the assumption and incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)any related transactions, the Borrower shall be in Pro Forma Compliance and (C) the aggregate outstanding principal amount of Indebtedness incurred under pursuant to this Section 6.01(iclause (h) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million35.0 million at any time outstanding;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the respective property that is (real or personal, and whether through the subject direct purchase of property or the Equity Interests of any person owning such Indebtedness and (iiproperty) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness permitted under this clause (j) Agreement in order to finance such acquisition, lease or permitted Sale improvement, and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof thereof, in an aggregate outstanding principal amount not to exceed $40.0 million;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof; provided that the Payment Conditions are subject to satisfied at the ABL/Term Loan Intercreditor Agreement (in time of the case incurrence of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with such Indebtedness; and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof;
(k) other unsecured Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed $35.0 million;
(l) Indebtedness of the Note Co-Issuers pursuant to the Second Lien Notes and Permitted Refinancing Indebtedness in respect thereof;
(m) Guarantees (i) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iiiii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iii) by any Foreign Subsidiary of Indebtedness of another Foreign Subsidiary, and (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) other Indebtedness incurred by the Borrower or any Subsidiary Loan Party so long as (A) no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Total Net Senior Secured Leverage Ratio on a Pro Forma Basis, is 2.00 Basis shall not be greater than 3.50 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionrespect thereof;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the in an aggregate amount not to exceed at any time outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.0425.0 million;
(t) unsecured Indebtedness 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) other unsecured Indebtedness arising from customer deposits of the Borrower and advance payments received in the ordinary course Subsidiaries; provided that the Payment Conditions are satisfied at the time of business from customers for goods and services purchased in the ordinary course incurrence of businesssuch Indebtedness; provided, further, that the weighted average life to maturity of such Indebtedness shall be at least six months later than the Maturity Date;
(w) Indebtedness consisting of reimbursement obligations related the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities (including intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to bank guarantees the Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent that such obligations are collateralized by cash or cash equivalentsand amount, provided in Section 6.02(b) and in the Security Documents;
(x) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in excess, at any one time outstanding, of $30.0 million;
(y) Indebtedness consisting of promissory notes Indebtedness issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates estates, spouses or family members former spouses to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity Holdings permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date Transactions or any Permitted Business Acquisitions Acquisition or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of mortgage financings incurred by the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used Subsidiary in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used any Real Property that is not included in the Borrowing Base, not to fund charges, expenses, accruals or reserves in accordance with clause (k) exceed at any time outstanding 85% of the definition aggregate fair market value of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofReal Property; and
(ccbb) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbaa) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 2 contracts
Sources: Credit Agreement (Quality Distribution Inc), Credit Agreement (Quality Distribution Inc)
Indebtedness. IncurNeither the Borrowers nor the Subsidiary Guarantors shall directly or indirectly, create create, incur, assume or assume suffer to exist any Indebtedness, except:
(a) Indebtedness of any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofLoan Party under the Loan Documents;
(b) Indebtedness created hereunder or under outstanding on the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Closing Date and listed on Schedule 7.03(b) and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtednessthereof;
(c) Guarantees by any Borrower or Subsidiary Guarantor in respect of Indebtedness pursuant of any Borrower or Subsidiary Guarantor otherwise permitted hereunder; provided that if the Indebtedness being guaranteed is subordinated to Hedge Agreements the Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(d) Indebtedness of any Borrower or Subsidiary Guarantor owing to any Borrower or Subsidiary Guarantor (or issued or transferred to any Parent Company of a Loan Party which is substantially contemporaneously transferred to a Loan Party);
(e) Indebtedness in respect of Swap Contracts designed to hedge against any Borrower’s or Subsidiary Guarantor’s exposure to interest rates, foreign exchange rates or other than commodity pricing risks incurred in the ordinary course of business and not for speculative purposes;
(df) Indebtedness representing deferred compensation to employees of any Borrower (or any Parent Company thereof) or any of its Subsidiaries incurred in the ordinary course of business;
(g) Indebtedness consisting of promissory notes issued by any Borrower or Subsidiary Guarantor to current or former officers, managers, consultants, directors and employees of any Borrower (or any Parent Company thereof) or any of its Subsidiaries, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of any Borrower or any Parent Company of such Borrower or any Subsidiary permitted by Section 7.06;
(h) Indebtedness incurred by any Borrower or Subsidiary Guarantor in connection with the Transactions or an Investment expressly permitted hereunder or any Disposition, in each case, constituting indemnification obligations or obligations in respect of purchase price (including earnouts) or other similar adjustments;
(i) so long as no Default Indebtedness consisting of obligations of any Borrower or Event Subsidiary Guarantor under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions and Investments expressly permitted hereunder;
(j) Cash Management Obligations and other Indebtedness in respect of Default has occurred netting services, automatic clearinghouse arrangements, overdraft protections and is continuing similar arrangements in each case in connection with deposit accounts;
(i) Indebtedness of any Borrower or would result from Subsidiary Guarantor, in an aggregate principal amount at any time outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed $10,000,000 at such time, plus (ii) additional Indebtedness of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is any Borrower or Subsidiary Guarantor in an aggregate outstanding principal amount not greater than 5.25:1.00 one hundred percent (100.0%) of the “Leverage Ratio Debt”net cash and Cash Equivalent proceeds received by any Borrower up to such time from (x) the issuance or sale of its Qualified Equity Interests and/or (y) a contribution to its common equity with the net cash and Cash Equivalent proceeds from the issuance and sale by any Borrower (or any Parent Company of such Borrower) of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, any Borrower or Subsidiary Guarantor and other than the proceeds of any Designated Equity Contribution), to the extent that such net cash and Cash Equivalent proceeds are Not Otherwise Applied; provided that, under Section 7.03(k)(ii), (i) the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to (A) if such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations, the Junior Lien Intercreditor Agreement as a “Senior Representative” (as defined in the Junior Lien Intercreditor Agreement), in the event that a Junior Lien Intercreditor Agreement is in effect at such time, and a First Lien Intercreditor Agreement and (B) if such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens on the Collateral securing the Obligations, the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (as defined in the Junior Lien Intercreditor Agreement), (ii) Liens securing such Indebtedness shall not attach to any Permitted Refinancing assets or property of any Borrower or Subsidiary other than the Collateral, (iii) in the case of such Indebtedness secured on a pari passu basis with the Obligations, such Indebtedness shall have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities (without giving effect to any prior payments that would otherwise modify such Weighted Average Life to Maturity), (iv) in the case of such Indebtedness secured on a pari passu basis with the Obligations, such Indebtedness shall have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred and (v) with respect to Refinance any such Leverage Ratio DebtIndebtedness in the form of syndicated term loans that is secured on a pari passu basis with the Obligations, such Indebtedness shall be subject to the MFN Protection as if such Indebtedness were an Incremental Term Loan;
(el) Indebtedness owed of any Borrower or Subsidiary Guarantor, in an aggregate principal amount at any time outstanding not to exceed an amount equal the amount of Cash Flow Available for Distribution determined on the date of incurrence to the extent Not Otherwise Applied; provided the Restricted Payment Conditions are satisfied; provided further that (i) the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to (including obligations A) if such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations, the Junior Lien Intercreditor Agreement as a “Senior Representative” (as defined in the Junior Lien Intercreditor Agreement), in the event that a Junior Lien Intercreditor Agreement is in effect at such time, and a First Lien Intercreditor Agreement and (B) if such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens on the Collateral securing the Obligations, the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (as defined in the Junior Lien Intercreditor Agreement), (ii) Liens securing such Indebtedness shall not attach to any assets or property of any Borrower or Subsidiary other than the Collateral, (iii) in the case of such Indebtedness secured on a pari passu basis with the Obligations, such Indebtedness shall have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities (without giving effect to any prior payments that would otherwise modify such Weighted Average Life to Maturity), (iv) in the case of such Indebtedness secured on a pari passu basis with the Obligations, such Indebtedness shall have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred and (v) with respect to any such Indebtedness in the form of syndicated term loans that is secured on a pari passu basis with the Obligations, such Indebtedness shall be subject to the MFN Protection as if such Indebtedness were an Incremental Term Loan;
(m) Indebtedness consisting of the financing of insurance premiums;
(n) Indebtedness incurred by any Borrower or Subsidiary Guarantor in respect of letters of credit or credit, bank guarantees guarantees, bankers’ acceptances or similar instruments for the benefit of) any person providing workers’ compensation, health, disability issued or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, created in the ordinary course of business; provided that upon any reimbursement obligations in respect thereof are reimbursed within thirty (30) days following the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrencethereof;
(fo) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness obligations in respect of performance bondsperformance, bid bondsbid, appeal bonds, and surety bonds and performance and completion guarantees and similar obligationsobligations provided by any Borrower or Subsidiary Guarantor or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(p) Indebtedness of any Borrower or Subsidiary Guarantor in respect of one or more series of senior secured loans or notes (whether issued in a public offering, under Rule 144A of the Securities Act or in another private placement or otherwise) (and including any bridge financings in lieu of such notes), junior secured or unsecured “mezzanine” loans or notes or senior unsecured or subordinated loans or notes, in each case, provided pursuant to an indenture, interim agreement, loan agreement, note purchase agreement or otherwise and any extensions, renewals, refinancings and replacements thereof, including in the ordinary course case of businessany such notes, including those incurred to secure health, safety and environmental obligations in any Registered Equivalent Notes (the ordinary course “Incremental Equivalent Debt”); provided that (i)(x) if the proceeds of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness are being used to finance an acquisition, Investment, or irrevocable repayment, repurchase or redemption, no Event of Default under Sections 8.01(a) or (other than credit f) with respect to any Borrower shall have occurred and be continuing or purchase cardswould exist after giving effect to such Indebtedness, or (y) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; providedif otherwise, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately exist after giving effect to such incurrence or assumption of Indebtedness and Indebtedness, (ii) any Permitted Refinancing such Incremental Equivalent Debt that is secured shall not be secured by any property or assets of any Borrower or Subsidiary Guarantor other than the Collateral, (iii) in the case of Incremental Equivalent Debt secured on a pari passu basis with the Facilities (“Incremental Equivalent First Lien Debt”), such Incremental Equivalent First Lien Debt shall have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities (without giving effect to any prior payments that would otherwise modify such Weighted Average Life to Maturity), and, in the case of Incremental Equivalent Debt that is secured on a junior lien basis with the Facilities or is unsecured (“Incremental Equivalent Junior Lien Debt”), such Incremental Equivalent Junior Lien Debt shall not be subject to scheduled amortization prior to the Latest Maturity Date at the time such Indebtedness incurred is incurred; and, no Incremental Equivalent Debt shall be subject to Refinance mandatory redemption, repurchase or prepayment provisions (except customary asset sale, equity sweep, event of loss, change of control or event of default and similar provisions and, in the case of loans, excess cash flow sweeps) that could result in redemption, repurchase or prepayment prior to the Latest Maturity Date at the time such IndebtednessIndebtedness is incurred; provided that the foregoing requirements of this clause (iii) shall not apply to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (iii) and such conversion or exchange is subject only to conditions customary for similar conversions or exchange, (iv) in the case of Incremental Equivalent First Lien Debt, such Incremental Equivalent First Lien Debt shall have a maturity date that is after the Latest Maturity Date at the time of the incurrence or assumption of any such Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financingsis incurred, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceedthe case of Incremental Equivalent Junior Lien Debt, such Incremental Equivalent Junior Lien Debt shall have a maturity date that is at least ninety-one (91) days after the Latest Maturity Date at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtednessincurred; provided that the foregoing requirements of this clause (iiv) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes to the extent such Indebtedness constitutes a customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted or exchanged satisfies the requirements of calculating Permitted Indebtedness under this clause (jiv) and such conversion or permitted Sale and Lease-Back Transactions under Section 6.03 if exchange is subject only to conditions customary for similar conversions or exchanges, (v) in the proceeds case of Incremental Equivalent First Lien Debt in the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any form of syndicated term loans, such Incremental Revolving Commitments (in each case, Equivalent First Lien Debt shall be subject to the extent commitments in respect thereof are permanently reduced by the amount of MFN Protection as if such prepayments);
Indebtedness were an Incremental Term Loan, (kvi) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness all Incremental Equivalent Debt incurred pursuant to in accordance with this clause (l) shall not exceedSection 7.03(p), at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) together with the aggregate principal amount of any all Incremental Commitments and Incremental Term Loans or shall not exceed the Incremental Availability Amount, (vii) the incurrence of any Incremental Equivalent Term DebtDebt shall be in compliance with Regulation T, in each case permitted U and X promulgated by the Term FRB, (viii) the security agreements, if applicable, relating to such Indebtedness are substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (ix) such Indebtedness is not guaranteed other than by the Loan Credit Agreement as in effect Parties, (x) if such Incremental Equivalent Debt is secured, the Other Debt Representative acting on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any behalf of the foregoing Indebtedness;
(n) Guarantees (i) holders of the such Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject shall have become party to the ABL/Term Loan First Lien Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan and/or Junior Lien Intercreditor Agreement, as applicable, and (iixi) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted subject to be incurred under this Agreement, clauses (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); , (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in above, the ordinary course of business on ordinary business terms so long as amortization, pricing, rate floors, discounts, fees, premiums and optional prepayment and redemption provisions applicable to such Indebtedness is permitted to Incremental Equivalent Debt shall be incurred under Section 6.01(s) to determined by the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness Representative and the holders of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of CreditIncremental Equivalent Debt;
(q) Indebtedness consisting supported by a letter of (i) the financing credit with respect to which any Borrower or Subsidiary Guarantor has any reimbursement obligations, so long as such reimbursement obligations constitute Indebtedness permitted pursuant to any other clause of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of businessthis Section 7.03;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Credit Agreement Refinancing Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;and
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium premiums (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bbr) above. Notwithstanding the foregoing, no Borrower shall permit any of its Subsidiaries (other than a Loan Party or Excluded Subsidiary pursuant to clause (a) or (c) of this Section 6.01the definition thereof) to, directly or indirectly, create, incur, assume, or suffer to exist any Indebtedness; provided, that with respect to any such Indebtedness of an Immaterial Subsidiary, such Indebtedness shall only be permitted if such Indebtedness is intended to promptly be transferred (by operation of law or otherwise) to a Loan Party or an Excluded Subsidiary pursuant to clause (a) of the definition thereof. For purposes of determining compliance with this Section 6.017.03, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category more than one of Permitted the categories of Indebtedness described in Section 6.01 clauses (other than Sections 6.01(a), a) through (b), (ms) or (bb))above, the Borrower mayRepresentative shall, in its sole discretion, classify or later divide, classify or reclassify all or a portion of such item of Indebtedness or any portion thereof in a manner that complies with this Section 7.03 and will only be required to include the amount and type of such item Indebtedness in one or more of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausethe above clauses.
Appears in 2 contracts
Sources: Credit Agreement (GIC Private LTD), Credit Agreement (Blackstone Holdings III L.P.)
Indebtedness. IncurThe Borrower will not, create nor will it permit any Subsidiary to, create, incur or assume suffer to exist any Indebtedness, nor will it permit Borrower or any of its Subsidiaries to issue preferred stock (other than shares of preferred stock of the Borrower or any of its Subsidiaries issued to the Borrower or a Guarantor), except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofObligations of the Loan Parties under the Loan Documents;
(b) Indebtedness created hereunder or under existing on the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Amendment Effective Date and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtednessdescribed in all material respects in Schedule 6.14;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes[Reserved];
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from unsecured Indebtedness for borrowed money incurred by any Loan Party; provided, however, that after giving effect to the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long asthe Total Leverage Ratio, determined on a Pro Forma Basispro forma basis, does not exceed the Senior Secured Total Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtThreshold;
(e) Indebtedness owed or preferred stock of (i) the Borrower or a Guarantor incurred to finance an acquisition permitted hereunder or (including obligations ii) Persons that are acquired by the Borrower or a Guarantor or merged into the Borrower or a Guarantor in respect accordance with the terms of letters this Agreement; provided, however, that after giving effect to such acquisition or merger, the Total Leverage Ratio, determined on a pro forma basis, does not exceed the greater of credit (x) Total Leverage Threshold or bank guarantees or similar instruments for (y) the benefit ofTotal Leverage Ratio in effect immediately prior to giving effect to such transaction;
(f) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to Indebtedness incurred by the Borrower or any Subsidiary constituting reimbursement obligations with respect to letters of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, credit issued in the ordinary course of business; provided that upon the incurrence business in respect of workers’ compensation claims, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations shall be are reimbursed not later than within 30 days following such drawing or incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect arising from agreements of performance bondsthe Borrower or a Subsidiary providing for indemnification, bid bonds, appeal bonds, surety bonds and completion guarantees and adjustment of purchase price or similar obligations, in each case, provided incurred or assumed in connection with the ordinary course disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided, however, that:
(i) such Indebtedness is not reflected on the balance sheet of the Borrower or any Subsidiary (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will be deemed to be reflected on such balance sheet for purposes of this clause (g)(i)); and
(ii) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including those incurred non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to secure health, safety and environmental obligations any subsequent changes in value) actually received by the ordinary course of businessBorrower or any Subsidiary in connection with such disposition;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, Borrower to a Guarantor or (ii) other Indebtedness of a Guarantor to the Borrower or another Guarantor; provided that any such Indebtedness is made pursuant to an intercompany note; provided further that any subsequent transfer of any such Indebtedness (except to the Borrower or another Guarantor) shall be deemed, in each case, to be an incurrence of such Indebtedness that was not permitted by this clause (h);
(i) the guarantee by the Borrower or any of the Guarantors of Indebtedness of the Borrower or a Subsidiary that was permitted to be incurred by another provision of this covenant; provided that if the Indebtedness being guaranteed is subordinated to the Obligations, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed;
(j) the incurrence by the Borrower or any Subsidiary of Indebtedness or issuance of preferred stock that serves to extend, refund, refinance, renew, replace or defease any Indebtedness or preferred stock incurred or issued as permitted under clause (b), (d) or (e) above, this clause (j) or any Indebtedness or preferred stock incurred or issued to so refund or refinance such Indebtedness or preferred stock (the “Refinancing Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing Indebtedness:
(i) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness or preferred stock being refunded or refinanced;
(ii) to the extent such Refinancing Indebtedness refinances (A) Indebtedness subordinated or pari passu to the Obligations, such Refinancing Indebtedness is subordinated or pari passu to the Obligations at least to the same extent as the Indebtedness being refinanced or refunded; or (B) preferred stock, such Refinancing Indebtedness must be preferred stock;
(iii) shall not include:
(A) Indebtedness or preferred stock of a Subsidiary that refinances Indebtedness or preferred stock of the Borrower; or
(B) Indebtedness or preferred stock of a Subsidiary that is not the Borrower or a Guarantor that refinances Indebtedness or preferred stock of the Borrower or a Guarantor; and
(iv) is in a principal amount not in excess of the principal amount of Indebtedness being refunded or refinanced (including additional Indebtedness incurred to pay premiums, fees and expenses in connection therewith);
(k) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as funds in the ordinary course of business; provided such Indebtedness (other than credit or purchase cards) is extinguished within 10 five Business Days after notification is received of its incurrence;
(l) the incurrence by the Borrower or any Subsidiary of its incurrence and (iii) any Indebtedness in respect of workers’ compensation claims, payment obligations in connection with health or other cash management types of social security benefits, unemployment or treasury services entered other insurance or self-insurance obligations in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of that may be deemed to exist pursuant to any Incremental Term Loans performance, completion or Incremental Equivalent Term Debtsimilar guarantees, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreementperformance, as applicablesurety, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreementstatutory, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 appeal, bid, payment (other than Section 6.04(t)); (ivpayment of Indebtedness) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnificationreclamation bonds, contribution, earn-out, adjustment of purchase or acquisition price statutory obligations or similar obligationsobligations (including any bonds or letters of credit issued with respect thereto and all guarantee, in each case, incurred or assumed reimbursement and indemnity agreements entered into in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(ptherewith) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(vn) obligations incurred in connection with any management or director deferred compensation plan;
(o) Indebtedness arising from customer in respect of (i) employee credit card programs and (ii) netting services, cash pooling arrangements or similar arrangements in connection with cash management and deposit accounts; provided that, with respect to any such arrangements, the total amount of all deposits and advance payments received subject to such arrangement at all times equals or exceeds the total amount of overdrafts subject to such arrangement;
(p) (x) overnight Repurchase Agreements incurred in the ordinary course of business from customers for goods and services purchased (y) Repurchase Agreements with maturities of less than 30 days (and excluding Indebtedness incurred pursuant to clause (x) of this clause (p)) which at any one time outstanding do not exceed $100,000,000;
(q) Indebtedness (including Capitalized Lease Obligations) and preferred stock incurred by the Borrower or any Guarantor, the proceeds of which are applied to finance the development, construction, purchase, lease, repairs, additions or improvement of property (real or personal), equipment or other fixed or capital assets that are used or useful in a Similar Business, whether through the ordinary course direct purchase of businessassets or the Capital Stock of any Person owning such assets, in an aggregate principal amount which, when aggregated with the principal amount of all other Indebtedness and preferred stock then outstanding and incurred pursuant to this clause (q) and including all Indebtedness and preferred stock incurred to refund, refinance or replace any other Indebtedness incurred pursuant to this clause (q), does not exceed $35,000,000;
(A) Indebtedness or preferred stock of the Borrower or of a Guarantor owing to a Non-Guarantor (other than an SPE) that is subordinated in right of payment to the Obligations of the Borrower or such Guarantor and (B) Indebtedness or preferred stock in an aggregate principal amount outstanding at any time not to exceed $150,000,000 of a Non-Guarantor (other than an SPE) owing to the Borrower or a Guarantor; provided that any subsequent transfer of any such Indebtedness or preferred stock (except to the Borrower or a Subsidiary) shall be deemed to be an incurrence of such Indebtedness that was not permitted by this clause (r);
(s) loans and advances owing by any Non-Guarantor to another Non-Guarantor;
(t) Indebtedness owing by any Non-Guarantor so long as the aggregate amount of Indebtedness incurred pursuant to this clause (t) does not at any one time outstanding exceed $50,000,000 and guarantees of such Indebtedness by the Borrower or any Guarantor;
(u) Indebtedness in respect of Pari Passu First Lien Notes, Incremental Second Lien Notes and Incremental Unsecured Notes issued pursuant to Section 2.25(a);
(v) Indebtedness owing by a Non-Guarantor to the Borrower or a Guarantor as a result of any Investment permitted under Section 6.17(d), 6.17(s), 6.17(t) or 6.17(v); and
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower and Indebtedness or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests preferred stock of the Borrower or any Parent Entity Guarantor not otherwise permitted by Section 6.06;
hereunder in an aggregate principal amount or liquidation preference, which when aggregated with the principal amount and liquidation preference of all other Indebtedness or preferred stock then outstanding and incurred pursuant to this clause (y) Guarantees by w), does not at any one time outstanding exceed $100,000,000. Without limiting the generality of the foregoing, neither the Borrower nor any Subsidiary shall incur or have outstanding any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01SPEs. For purposes of determining compliance with this Section 6.01, 6.14: (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (Bi) in the event that an item of Indebtedness or preferred stock (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category more than one of Permitted the categories of permitted Indebtedness or preferred stock described in Section 6.01 clauses (other than Sections 6.01(a), a) through (b), (mw) or (bb))above, the Borrower mayBorrower, in its sole discretion, may classify or reclassify such item of Indebtedness or preferred stock (or any portion thereof) and will only be required to include the amount and type of such Indebtedness or preferred stock in one of the above clauses; and (ii) at the time of incurrence or reclassification, the Borrower will be entitled to divide and classify an item of Indebtedness or preferred stock in more than one of the types of Indebtedness or preferred stock described in clauses (a) through (w) above. Accrual of interest, the accretion of accreted value and the payment of interest or dividends in the form of additional Indebtedness will not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.14. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be treated calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as having been the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. The principal amount of any Indebtedness incurred or existing pursuant to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such other clauserespective Indebtedness is denominated that is in effect on the date of such refinancing.
Appears in 2 contracts
Sources: Credit Agreement (Moneygram International Inc), Credit Agreement (Moneygram International Inc)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any The Existing Notes, the New 1-1/2 Lien Notes, other Indebtedness listed existing, or incurred pursuant to facilities existing, on the Closing Date and set forth on Schedule 6.01(a) 6.01 to the 2005 Credit Agreement and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness or, without duplication, replacements of such facilities that would constitute Permitted Refinancing Indebtedness with respect to such facilities if all Indebtedness available to be incurred thereunder were outstanding on the date of such replacement (other than Permitted Refinancing Indebtedness in respect thereofof intercompany indebtedness of the U.S. Borrower or any Subsidiary owed to the U.S. Borrower or any Subsidiary Refinanced with Indebtedness owed to a person other than the U.S. Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the U.S. Borrower and the Subsidiaries pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings (including self-insurance) to until a Qualified IPO), the U.S. Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of the U.S. Borrower to any Subsidiary and of any Subsidiary to the U.S. Borrower or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiariesany other Subsidiary; provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by the of any Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by the to any Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(h) (i) (A) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the U.S. Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets or in connection with a Permitted Business Acquisition; provided, which Indebtedness in each case, exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event or (B) Indebtedness incurred to finance any such acquisition or Permitted Business Acquisition and where, in each case, (1) no Event of Default shall have occurred such acquisition, merger or consolidation is permitted by this Agreement and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactionswhere, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness is new Indebtedness incurred to finance such acquisition or assumed is First Lien DebtPermitted Business Acquisition, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred is unsecured or assumed is secured Indebtedness other than First Lien Debt, subordinated to the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, Obligations on a Pro Forma Basis immediately after giving effect terms reasonably satisfactory to such incurrence or assumption of Indebtedness the Administrative Agent and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant that, with respect to clause (i) above (and ), immediately after giving effect thereto)to such acquisition, merger or consolidation, and the aggregate outstanding amount assumption or incurrence of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r)such Indebtedness, there shall be no Default or Event of Default and the U.S. Borrower shall be in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionPro Forma Compliance;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the U.S. Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject of such time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to this paragraph (i) and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (6.03) would not in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 million and (ii) 9.05% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Indebtedness consisting of (i) Term Loan Capital Lease Obligations incurred by the U.S. Borrower or any Subsidiary in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount respect of any Incremental Term Loans or Incremental Equivalent Term DebtSale and Lease-Back Transaction that is permitted under Section 6.03, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject thereof;
(k) other Indebtedness of the U.S. Borrower or any Subsidiary (pursuant to this paragraph (k)), in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $150.0 million and 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the ABL/Term date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Guarantees (i) by the U.S. Borrower or any Subsidiary Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the U.S. Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iiiii) by the U.S. Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 6.04(b) and (other than Section 6.04(t)); (iviii) by any Restricted Foreign Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t))Subsidiary; provided that (A) Guarantees by the U.S. Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(1) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations on terms not less favorable to at least the same extent as Lenders than the subordination terms of such underlying other Indebtedness, (B) no subsidiary of the U.S. Borrower (other than Hexion Nova Scotia Finance ULC) that is not a Domestic Loan Party shall Guarantee the Existing Second Secured Notes, the New 1-1/2 Lien Notes, any First Lien Notes, the Debentures, Indebtedness issued under Section 6.01(ee) or any Permitted Refinancing Indebtedness in respect of any of the foregoing or any Indebtedness that is subordinatedsecured by any Second-Priority Liens and (C) no subsidiary of the U.S. Borrower that is not a Loan Party shall Guarantee any Indebtedness incurred pursuant to Section 6.01(w) or any Permitted Refinancing Indebtedness in respect thereof or any Permitted Refinancing Indebtedness incurred under Section 6.01(b);
(om) Indebtedness arising from agreements of Holdings, the U.S. Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(n) [reserved];
(o) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $15.0 million;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (ix) the financing of insurance premiums or (iiy) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million[reserved];
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04[reserved];
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements[reserved];
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbq) of this Section 6.01. For purposes of determining compliance with this Section 6.01, above and paragraphs (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(av) through Section 6.01(cc(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.below;
Appears in 2 contracts
Sources: Incremental Assumption Agreement (Momentive Specialty Chemicals Inc.), Amendment Agreement (Hexion Specialty Chemicals, Inc.)
Indebtedness. IncurThe Borrower will not, create nor will it permit any Subsidiary to, create, incur or assume suffer to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower The Loans and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and Reimbursement Obligations.
(ii) Indebtedness owing existing on the date hereof and described in the Disclosure Schedule.
(iii) Indebtedness arising under Rate Management Transactions permitted by Section 7.11.
(iv) Contingent Obligations permitted by Section 7.10.
(v) Non-recourse Indebtedness as to which none of Borrower or its Subsidiaries (i) provides any guaranty or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (ii) is directly or indirectly liable (as a guarantor or otherwise); provided, that after giving effect to such Indebtedness outstanding from time to time, Borrower is not in violation of Article VIII.
(vi) Indebtedness of Borrower in respect of guarantee obligations of Cimarex Energy Services, Inc., an Oklahoma corporation, which do not in the aggregate exceed $75,000,000 at any one time outstanding.
(vii) Indebtedness evidenced by the Borrower Senior Notes, and guarantee obligations of Subsidiaries in respect thereof; provided, that, such guarantee obligations exist as of the date hereof, are required by the terms of the Indentures, or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated are otherwise on terms and conditions satisfactory to the Obligations pursuant to customary subordination provisions;Administrative Agent in its sole reasonable discretion.
(gviii) Permitted Bond Indebtedness, and guarantee obligations of Subsidiaries of the Borrower in respect thereof, provided, that, such guarantee obligations are on terms and conditions satisfactory to the Administrative Agent, in its sole reasonable discretion.
(ix) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the 9.60% Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financingsNotes Refinancing, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time guarantee obligations of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness Subsidiaries of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof thereof, provided, that, such guarantee obligations are subject on terms and conditions satisfactory to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligationsAdministrative Agent, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;its sole reasonable discretion.
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity Financial Contracts permitted by under Section 6.06;7.11.
(yxi) Guarantees by the Borrower or any other Restricted Subsidiary Miscellaneous items of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses subsections (ai) through (bbx) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need above which do not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item aggregate (taking into account all such Indebtedness of Indebtedness (other than Borrower and its Subsidiaries) exceed $25,000,000 at any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseone time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Cimarex Energy Co), Credit Agreement (Cimarex Energy Co)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the date hereof and set forth on Schedule 6.01(a6.01, but not any extensions, renewals or replacements of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements evidencing any such Indebtedness as in effect on the Closing Date, (ii) refinancings and extensions of any such Indebtedness if the average life to maturity thereof is greater than or equal to that of the Indebtedness being refinanced or extended, provided that, in the case of clauses (i) and any (ii), such extending, renewal or replacement Indebtedness shall not be (x) Indebtedness of an obligor that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced or (y) in a principal amount that exceeds the Indebtedness being extended or refinanced (plus unpaid accrued interest and premium thereon), (iii) Permitted ▇▇▇▇▇ Refinancing Indebtedness and (iv) in respect thereofthe case of Holdings, the Management Equity Loan;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the U.S. Borrower and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ ' compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the U.S. Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ ' compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of any Borrower to any Subsidiary and any Subsidiary to any Borrower or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; any other Subsidiary, provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower Subsidiaries that is are not a Loan Party Parties to the Borrower or another Subsidiary Borrowers and the Loan Party is permitted under Parties shall be subject to Section 6.04(b6.04(d) and (ii) Indebtedness owing by the of any Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to (the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv"Subordinated Intercompany Debt") by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior terms reasonably satisfactory to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04Administrative Agent;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Credit Agreement (TRW Automotive Inc), Credit Agreement (TRW Automotive Inc)
Indebtedness. IncurBorrower shall not, create and shall not permit any of its Subsidiaries to, create, incur, assume or assume otherwise become liable for or suffer to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) than: (i) so long as no Default Indebtedness of Borrower and its Subsidiaries to Agent, Lenders or Event Cisco Systems; (ii) Indebtedness of Default has occurred Borrower and is continuing its Subsidiaries existing on the date hereof and disclosed to Lenders or would result from the incurrence extensions, renewals and refinancings of such Indebtedness, other provided that the principal amount of such Indebtedness secured by Liens permitted by Section 6.02(u) so long asbeing extended, on a Pro Forma Basis, the Senior Secured Leverage Ratio is renewed or refinanced does not greater than 5.25:1.00 increase; (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(eiii) Indebtedness owed of Borrower and its Subsidiaries under the Financing Documents (if any) or any refinancings, extensions and renewals of such Indebtedness, provided that the principal amount of such Indebtedness being refinanced, extended or renewed does not increase; (iv) accounts payable to trade creditors for goods and services and current operating liabilities (including obligations not the result of the borrowing of money) incurred in respect the ordinary course of letters Borrower's or such Subsidiary's business 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; (v) Indebtedness consisting of credit or bank guarantees or similar resulting from endorsement of negotiable instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the collection by Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, Subsidiary in the ordinary course of business; provided that upon the incurrence (vi) Indebtedness of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted its Subsidiaries under capital leases or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by otherwise incurred under or in connection with any Restricted Subsidiary Liens of the Borrower that is not a Loan Party type referred to in clause (vii) or (viii) of the Borrower or another Subsidiary Loan Party is permitted under definition of Permitted Liens in Section 6.04(b1; (vii) and Subordinated Debt of Holdings; (iiviii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of performance bondsBorrower, 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 environmental obligations in the ordinary course of business;
Indebtedness secured by a Permitted Lien; (iix) Indebtedness of Borrower to any of its wholly owned Subsidiaries or any of its wholly owned Subsidiaries to another of its wholly owned Subsidiaries; and (x) in respect of Cash Management Services in the ordinary course of businessBorrower, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, Transaction (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations limitations thereon contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any "Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiumsTransaction"), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Credit Agreement (Cogent Communications Group Inc), Credit Agreement (Cogent Communications Group Inc)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any (i) the Existing Notes, (ii) [reserved] and (iii) other Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary of the Borrower);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower and its Relevant Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any Relevant Subsidiary of the other Restricted Subsidiaries Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case, Person in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower and or any Relevant Subsidiary owing to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is extent permitted under by Section 6.04(b) and (ii) 6.04, provided that Indebtedness owing by the Borrower or of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, ;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Relevant Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Relevant Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that exists at the time of such acquisition, merger, amalgamation or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement, provided that the incurrence or assumption aggregate principal amount of any such Indebtedness pursuant to clause (i) above (at the time of, and after giving effect theretoto, such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), the aggregate outstanding amount paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), would not exceed the greater of (i) $100.0 125.0 million and (ii) 7.02.0 % of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable, for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, 5.04 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that ;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Borrower or any Relevant Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of such Indebtedness this Section 6.01, this paragraph (i) and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k6.03) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 125.0 million and (ii) 9.02.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Indebtedness consisting Capital Lease Obligations incurred by the Borrower or any Relevant Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(ik) Term Loan Obligations other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(k) not in excess of (A) the greater of $625.0 100.0 million plus (B) the aggregate principal amount and 1.5 % of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessConsolidated Total Assets;
(nl) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as by any Liens securing the Term Loan Obligations Party or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Relevant Subsidiary of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement; provided, (iii) of Indebtedness otherwise permitted hereunder of any Restricted that a Relevant Subsidiary that is not a Loan Party shall not be permitted to Guarantee Indebtedness of a Loan Party pursuant to this sub-clause (i) unless such Relevant Subsidiary becomes (and remains) a guarantor hereunder while such Guarantee is outstanding, (ii) by the Borrower or any Relevant Subsidiary of Indebtedness of any Subsidiary that is not a Loan Party to the extent such Guarantees are permitted by Section 6.04 6.04, (other than Section 6.04(t)); (iviii) by any Restricted Relevant Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (viv) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(k) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)p); provided that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(om) Indebtedness arising from agreements of the Borrower or any Relevant Subsidiary of the other Restricted Subsidiaries Borrower providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(pn) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(qo) Indebtedness consisting of Permitted Junior Debt;
(ip) the financing Indebtedness of insurance premiums Relevant Subsidiaries that are Foreign Subsidiaries (including letters of credit or bank guarantees (iiother than Revolving Letters of Credit issued pursuant to Section 2.05) take or pay obligations contained in supply arrangements, in each case, for working capital purposes incurred in the ordinary course of businessbusiness on ordinary business terms in an aggregate amount not to exceed the greater of $25.0 million and 0.5% of Consolidated Total Assets outstanding at any time);
(r) (i) so long as no Default Indebtedness incurred and/or assumed in connection with Section 6.04(j) or Event of Default has occurred and is continuing or would result from 6.04(q); provided that the incurrence aggregate amount of such Indebtedness, other Indebtedness so long as outstanding pursuant to this Section 6.01(q) shall not exceed the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) of $150.0 million and 2.5% of Consolidated Total Assets and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofIndebtedness; and
(ccr) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbq) of this Section 6.01above. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (Bi) in the event that an item of Indebtedness (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category more than one of Permitted the categories of Indebtedness described permitted in this Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb))6.01, the Borrower mayor a Relevant Subsidiary, as the case may be, in its sole discretion, reclassify may classify, at the time of incurrence, such item of Indebtedness (or any portion thereof) in any such category and will only be required to include such Indebtedness (or any portion thereof) in one of the categories of Indebtedness permitted in this Section 6.01; and (ii) at the time of incurrence, the Borrower or a Relevant Subsidiary, as the case may be, in its sole discretion, may divide and classify an item of Indebtedness shall be treated as having been incurred (or existing pursuant to such other clauseany portion thereof) in more than one of the categories of Indebtedness permitted in this Section 6.01.
Appears in 2 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements permitted by Section 6.12;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger or consolidation, the time of the assumption and incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)any related transactions, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), Borrower shall be in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionPro Forma Compliance;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject of such Indebtedness time of, and (ii) after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case6.03, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 75.0 million and (ii) 9.05.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness consisting of (i) Term Loan Obligations the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $75.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Borrower pursuant to (i) the Second Lien Notes in an aggregate principal amount that is not in excess of $600.0 million, (A) $625.0 million plus (Bii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of any Incremental Term Loans or Incremental Equivalent Term Debt$300.0 million, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause paragraph (m1) of this Section 6.01 6.01, so long as the Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof is subordinated substantially on terms as set forth in the Senior Subordinated Notes Indenture with respect to the Senior Subordinated Notes, and so long as any Liens securing the Term Loan Obligations Guarantee of the Second Lien Notes or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Foreign Subsidiary, and (v) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01 (s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) Indebtedness consisting of Permitted Additional Debt and Permitted Refinancing Indebtedness in respect thereof so long as (i) so long as no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom, (ii) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the issuance, incurrence or assumption of such Indebtedness and (iii) in the case of any Permitted Additional Debt that is secured, immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Total Net Senior Secured Leverage Ratio on a Pro Forma Basis, is 2.00 Basis shall not be greater than 6.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million1.00;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the in an aggregate amount not to exceed $50.0 million outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04any time;
(t) unsecured Indebtedness 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in connection with Permitted Receivables Financings; provided that the ordinary course of business from customers for goods and services purchased proceeds thereof are applied in the ordinary course of businessaccordance with Section 2.11(b);
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and in the Security Documents (it being understood, however, that such obligations are collateralized by cash or cash equivalentsfor a period of 30 consecutive days during each fiscal year of the Borrower the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed $10.0 million);
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbw) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 2 contracts
Sources: Credit Agreement (Verso Paper Holdings LLC), Credit Agreement (Verso Sartell LLC)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Restricted Subsidiary of the Borrower);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower and the Restricted Subsidiaries pursuant to Hedge Agreements other than for speculative purposesPermitted Swap Agreements;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any Restricted Subsidiary of the other Restricted Subsidiaries Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of businessPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany unsecured Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party owing to any Restricted Subsidiary other Loan Party (the “Subordinated Intercompany Debt”), provided, that such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Person other than a Loan Party is Party, and provided, further, that any such Indebtedness for borrowed money shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (i) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five Business Days after notification is received by the Borrower of its incurrence and (iiiii) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Restricted Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Restricted Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger, amalgamation or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger, amalgamation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided provided, that the aggregate principal amount of such Indebtedness outstanding at the any time of the incurrence or assumption of any (together with Indebtedness outstanding pursuant to clause this paragraph (h) and paragraph (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), shall not exceed the greater of (iA) $100.0 U.S.$50.0 million and (iiB) 7.05.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that Assets;
(i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property Capital Lease Obligations (including any Sale and Lease-Back Transaction that is permitted under Section 6.03) and Purchase Money Obligations to the subject extent that the aggregate total of all such Capital Lease Obligations and Purchase Money Obligations outstanding at any one time (together with Indebtedness outstanding pursuant to this paragraph (i) and paragraph (iih) of this Section 6.01 and the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03 6.03), shall not apply for purposes exceed the greater of calculating Permitted Indebtedness under this clause (A) U.S.$50.0 million and (B) 5.5% of Consolidated Total Assets;
(j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds other secured junior Indebtedness of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans Borrower or any Incremental Revolving Commitments Subsidiary Loan Party; provided, that (in each casei) the Liens securing the Obligations shall be senior to the Liens securing such other secured junior Indebtedness, (ii) on or prior to the incurrence or creation of such other Indebtedness, the agent and lenders under such facility shall have entered into such intercreditor agreements as may be reasonably required or agreed by the Administrative Agent, (iii) to the extent commitments in respect thereof are permanently reduced required by Section 2.04(b) and Section 2.04(c), the Net Proceeds of such secured junior Indebtedness is applied to prepay the Loans, (iv) no such secured junior Indebtedness shall provide for a final maturity date, scheduled amortization or any other scheduled repayment, mandatory redemption or sinking fund obligation prior to the Maturity Date, (v) the incurrence of such senior secured junior Indebtedness is permitted by the amount Revolving Credit Facility, and (vi) no Default or Event of such prepayments)Default then exists or would result therefrom;
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of by the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Subsidiary Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iiiii) by the Borrower or any Restricted Subsidiary of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 6.04, and (other than Section 6.04(t)); (iviii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party and Party; provided, that Guarantees under clause (vii) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under this Section 6.01(s6.01(k) to the extent such Guarantees are permitted by Section 6.04 (and any other than Section 6.04(t)); provided that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(k) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(ol) Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary of the other Restricted Subsidiaries Borrower providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing such acquisition;
(m) Indebtedness supported by any Letter of Credit (as defined in the Revolving Credit Agreement) that is (i) outstanding on the Closing Date or (ii) issued after the Closing Date in connection with agreements existing on the Closing Date that contemplate or require the issuance of letters of credit; provided, that (x) any such Letter of Credit shall be issued in connection with the Double E Joint Venture or otherwise issued in respect of Indebtedness incurred in the ordinary course of business or with respect to trade payables and (y) the aggregate amount available to be drawn under all such Letters of Credit shall not exceed $100.0 million.
(n) Indebtedness consisting of Permitted Business AcquisitionJunior Debt;
(o) Guarantees of Indebtedness of Unrestricted Subsidiaries and other Persons that are not Loan Parties or Restricted Subsidiaries to the extent that Investments are permitted under Section 6.04(g);
(p) other unsecured Indebtedness supported not otherwise permitted by a Letter of Credit, this Section 6.01 in a an aggregate principal amount at any time outstanding not in excess of the stated amount of such Letter of Creditto exceed U.S.$25.0 million;
(q) Indebtedness consisting of (i) Summit Permian incurred pursuant to the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of businessIRB Lease Agreement;
(r) Indebtedness incurred under the Revolving Credit Agreement and Indebtedness pursuant to any Secured Swap Agreements (as defined in the Revolving Credit Agreement) constituting Permitted Swap Agreements and entered into to effectively cap, collar or exchange interest rates with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary Loan Party; provided that such Indebtedness (i) so long is subject at all times to the Intercreditor Agreement and (ii) the aggregate principal amount at any time outstanding under the Revolving Credit Agreement shall not exceed U.S.$1.0 billion; and provided further, that before and after giving effect to such incurrence, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenants, as no Default or Event computed as of Default has occurred and is continuing or would result from the date of the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint venturesunder the SMLP Holdings Credit Agreement; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior is subject at all times to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofIntercreditor Agreement; and
(cct) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbs) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Summit Midstream Partners, LP), Purchase Agreement (Summit Midstream Partners, LP)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) Indebtedness existing on the Closing Date and (other than in the case of any Indebtedness listed existing letters of credit to be replaced with Letters of Credit issued hereunder) set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Company or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Company and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Company or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 thirty (30) days following such incurrence;
(fe) intercompany Indebtedness between of the Company or among any Subsidiary to the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; extent permitted by Section 6.04, provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 three (3) Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within sixty (60) days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a Person merged into or consolidated with the Company or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; , provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect theretoto, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), the aggregate outstanding amount paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), the greater of would not exceed U.S.$50.0 million;
(i) $100.0 million Capital Lease Obligations, mortgage financings and (ii) 7.0% of Consolidated Total Assets as of purchase money Indebtedness incurred by the end of the fiscal quarter immediately Company or any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of such Indebtedness this Section 6.01, this paragraph (i) and (ii) the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03 shall 6.03) would not apply for purposes of calculating Permitted Indebtedness under this clause exceed U.S.$50.0 million;
(j) Capital Lease Obligations incurred by the Company or permitted any Subsidiary in respect of any Sale and Lease-Back Transactions Transaction that is permitted under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments)6.03;
(k) [Reserved]other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of U.S.$50.0 million;
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of senior or subordinated Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of Borrowers and any Incremental Term Loans unsecured senior or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) subordinated Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness, in each case in the form of the foregoing IndebtednessPermitted Debt Securities; provided that both immediately prior to and after giving effect (including pro forma effect) thereto, no Default or Event of Default shall exist or would result therefrom;
(nm) Guarantees (i) by the Loan Parties of the Indebtedness of the Borrower Borrowers described in clause paragraph (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicablel), (ii) by any Loan Party of any Indebtedness of the Borrower Company or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Company or any Subsidiary of Indebtedness otherwise expressly permitted hereunder of the Company or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); 6.04, (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Party; provided that all Foreign Subsidiaries may guarantee obligations of other Foreign Subsidiaries under ordinary course cash management obligations, and (v) by the Company or any Subsidiary of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(a), (k) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)s); provided that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(on) Indebtedness arising from agreements of Borrower the Company or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such acquisition;
(o) Indebtedness in connection with Permitted Business AcquisitionReceivables Financings; provided that the proceeds thereof are applied in accordance with Section 2.11(c) to the extent they constitute Net Proceeds;
(p) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of U.S.$20.0 million;
(q) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million[Intentionally Omitted];
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, including letters of credit or representing Guarantees bank guarantees (other than Letters of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered Credit issued pursuant to Section 5.04;
(t2.05) unsecured and including all Indebtedness in respect of obligations to pay the deferred purchase price of goods Chart Ferox, a.s. under its existing revolving credit facilities or services or progress payments in connection with such goods and services so long as such obligations are any refinancings thereof) for working capital purposes incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business in an aggregate amount not to exceed U.S.$30.0 million outstanding at any time;
(t) Indebtedness of the Company and its Subsidiaries in respect of factoring of receivables from a foreign customer held by the Company and its Subsidiaries in an aggregate principal amount not in connection with the borrowing of money or to exceed U.S. $15.0 million at any Hedge Agreementstime;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof[Intentionally Omitted]; and
(ccv) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbt) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 2 contracts
Sources: Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Effective Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposesSwap Agreements;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party owing to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person Parties shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant subject to Section 5.04;
(t6.04(b) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Second Lien Bridge Credit Agreement, Second Lien Bridge Credit Agreement
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, the Senior Unsecured Notes, the Senior Subordinated Notes, the Senior Secured First Lien Notes, the Senior Secured Second Lien Notes, the PIK Senior Subordinated Notes, the Existing Credit Agreement, the ABL Facility, the $130 Million Term Loan Facility, the $60 Million Gibraltar Term Loan Facility, the $40 Million Gibraltar Term Loan Facility, the Senior Euro Revolver Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedge Agreements other than for speculative purposesSwap Agreements;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany Subsidiary; provided provided, that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower or any Subsidiary to any Subsidiary that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party shall, to the greatest extent permitted by applicable law, be subordinated to the Obligations to the same extent (if at all) as such Indebtedness is subordinated to the Obligations pursuant ABL Facility and/or the Existing Credit Agreement, as certified by a Responsible Officer of the Borrower to customary subordination provisionsthe Administrative Agent at the time of any such incurrence;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence and (iiiy) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(h) Capital Lease Obligations or other obligations incurred by the Borrower or any other cash management or treasury services entered Subsidiary in the ordinary course respect of businessany Sale and Leaseback Transaction that are permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof;
(i) (i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger, consolidation or amalgamation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger, consolidation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed amalgamation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided provided, that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (iA) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement no Default or Event of Default shall have occurred and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions be continuing or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million would result therefrom and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (iiB) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause paragraph (li) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 75 million and (ii) 9.02.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Capital Lease Obligations, mortgage financings and purchase money Indebtedness consisting incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof; provided, that, if immediately after giving effect to such transaction, the Total Net Secured Leverage Ratio of the Borrower on a Pro Forma Basis would be greater than 5.00:1.00, then the amount of Indebtedness incurred pursuant to this paragraph (i), when combined with the Remaining Present Value of outstanding leases permitted under Section 6.03, shall not exceed the greater of $75 million and 2.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04; provided, further, that any lease arrangements that are not (or, if entered into after the Closing Date, would not have been) Capital Lease Obligations as of the Closing Date but subsequently become Capital Lease Obligations whether as a result of (ix) Term Loan any changes in GAAP or (y) any changes in the terms of such arrangements required in connection with the ordinary course renewal or extension thereof, shall not constitute Capital Lease Obligations hereunder or for any other provision of this Agreement;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not in excess exceed the greater of (A) $625.0 100 million plus (B) the aggregate principal amount and 3.0% of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement Consolidated Total Assets as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtednessend of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(nl) [Reserved];
(m) Guarantees (i) by the Loan Parties of the Indebtedness of the Borrower described in clause paragraphs (ma) and (b) of this Section 6.01 6.01, so long as any Liens securing the Term Loan Obligations Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof are subject subordinated substantially on terms as set forth in the Senior Subordinated Notes Indenture with respect to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicableSenior Subordinated Notes, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness or other obligations of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Foreign Subsidiary that is not a Loan Party and (v) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(r) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by the Borrower or any other Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit[Reserved];
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Other Indebtedness incurred to Refinance such Ratio Debtby the Borrower or any Subsidiary Loan Party; provided that (A) at the time of the incurrence of any such Indebtedness pursuant to clause (i) above (and after giving effect thereto), no Default or Event of Default shall have occurred and be continuing or would result therefrom; and (B) the aggregate outstanding amount Fixed Charge Coverage Ratio of the Borrower for the 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 under this Section 6.01(rwould have been at least 2.00:1.00 determined on a Pro Forma Basis, as if the additional Indebtedness had been incurred and the application of proceeds therefrom had occurred at the beginning of such four-quarter period and (ii) together with any amounts incurred under Section 6.01(i), Permitted Refinancing Indebtedness in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionrespect thereof;
(s) (i) Indebtedness of Foreign Subsidiaries and (iiother than Indebtedness owed to the Borrower or another Subsidiary) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the in an aggregate amount not to exceed at any time outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 50 million and (ii) 2.501.5% of Consolidated Total Assets as of at the end of the fiscal quarter immediately prior to the date time of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04incurrence;
(t) unsecured Indebtedness 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of businessconnection with Permitted Receivables Financings;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents[Reserved];
(x) Indebtedness consisting incurred on behalf of, or representing Guarantees of promissory notes Indebtedness of, joint ventures not in excess, at any one time outstanding, of the greater of $25 million or 1.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(y) Indebtedness issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates estates, spouses or family members former spouses to finance the purchase or redemption of Equity Interests of the Borrower Holdings or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securitiesx) of the Borrower or any of the other Restricted Subsidiaries Subsidiary incurred to finance an acquisition or (other than any such sale to Holdings or any of the Restricted Subsidiariesy) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of Persons that are being acquired by the Borrower or any of Subsidiary or merged, consolidated or amalgamated with or into the other Restricted Subsidiaries (other than in respect of Disqualified Stock Borrower or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves Subsidiary in accordance with clause the terms of this Agreement; provided, that after giving effect to such acquisition or merger, consolidation or amalgamation, either (kA) the Borrower would be permitted to incur at least $1.00 of additional Indebtedness under Section 6.01(r) or (B) the Fixed Charge Coverage Ratio of the definition of “Consolidated Net Income”) so long as Borrower would be equal to or greater than immediately prior to such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofacquisition or merger, consolidation or amalgamation; and
(ccbb) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbaa) of this Section 6.01above. For purposes of determining compliance with this Section 6.01, :
(A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (Bi) in the event that an item of Indebtedness Indebtedness, Disqualified Stock or Preferred Stock (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category one or more of Permitted the categories of permitted Indebtedness described in Section 6.01 clauses (other than Sections 6.01(a), a) through (b), (my) or (bb))above, the Borrower mayshall, in its sole discretion, reclassify classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner and at any time that complies with this Section 6.01; and
(ii) the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date that such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such item refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of Indebtedness such refinancing, such Dollar-denominated restriction shall be treated deemed not to have been exceeded so long as having been the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred or existing pursuant to in connection with such other clauserefinancing.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Claires Stores Inc), Term Loan Credit Agreement
Indebtedness. IncurDirectly or indirectly create, create incur, assume, guarantee, become liable, contingently or assume otherwise, with respect to, or otherwise become responsible for payment of ("incur") any Indebtedness (including, without limitation, Acquired Indebtedness), except:except the following (collectively, the "Permitted Indebtedness"):
(a) Indebtedness incurred under this Agreement, the other Loan Documents and each Other Credit Agreement, in an aggregate amount not to exceed $500,000,000;
(b) intercompany Indebtedness owed to any Subsidiary provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent;
(i) Indebtedness existing on the Closing Date and listed on Schedule 6.01(aB and (ii) and any Permitted Refinancing Indebtedness incurred in respect thereof;
(bi) Indebtedness created hereunder or under the other Loan Documentswith respect to capital leases, Credit Agreement Refinancing Indebtedness, (ii) purchase money Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted (iii) Refinancing Indebtedness incurred to Refinance any in respect of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtforegoing;
(e) Indebtedness owed to (including obligations in respect consisting of letters financing of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations premiums in the ordinary course of business;
(if) cash management obligations and other Indebtedness in respect of Cash Management Services endorsements for collection or deposit, netting services, overdraft protections and similar arrangements in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as each case in connection with deposit accounts; provided that such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten (10) Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of businessincurrence;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(mg) Indebtedness consisting of (i) Term Loan Obligations take-or-pay obligations contained in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date utility supply arrangements and (ii) Permitted Refinancing Indebtedness customary indemnification obligations, in each case, incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinatedand not in connection with debt for money borrowed;
(oh) letters of credit, bank guaranties or similar instruments in support of obligations in respect of workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money or capital leases);
(i) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn-out or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment acquisition or the disposition of any business, business or assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition(including Equity Interests);
(pj) Indebtedness supported by a Letter representing deferred compensation to directors, officers, employees, members of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, management and consultants in the ordinary course of business;
(rk) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods bankers' acceptances supporting trade payables, warehouse receipts or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred similar facilities entered into in the ordinary course of business;
(vl) Indebtedness arising from customer deposits and advance payments received to the extent constituting Indebtedness, investments in the ordinary course of business from customers for goods and services purchased in the ordinary course of businessrepurchase agreements constituting Cash Equivalents;
(wm) Indebtedness consisting of reimbursement obligations related to bank incurred under customary "bad acts" guarantees, environmental guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofagreements; and
(ccn) to the extent constituting Indebtedness, all premium premiums (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations Indebtedness described in clauses (a) through (bbm) above; provided that, notwithstanding the foregoing, if no Event of this Section 6.01Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such Indebtedness, Borrower may incur Indebtedness (including, without limitation, Acquired Indebtedness), in each case if on the date of the incurrence of such Indebtedness, after giving effect to the incurrence thereof, the Fixed Charge Coverage Ratio is equal to or greater than 1.50 to 1.00. For purposes of determining compliance with this Section 6.015.01, (A) accrued interest or dividends, accretion of accreted value, accretion or accrual of original issue discount, the payment of interest in the form of additional Indebtedness need or the payment of dividends in the form of additional capital stock, or the reclassification of obligations as Indebtedness because of a change in GAAP will not be permitted solely by reference to one category treated as the incurrence of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item Indebtedness. The amount of Indebtedness outstanding at any date will be (other than any item a) the accreted value of Indebtedness set forth in Sections 6.01(a)issued with original issue discount and, (b)) the principal amount, (m) or (bb) meets the criteria liquidation preference, of another category any other Indebtedness. The maximum amount of Permitted permitted Indebtedness described that Borrower may incur will not be deemed violated because of fluctuations in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausecurrency exchange rates.
Appears in 2 contracts
Sources: Credit Agreement (Northstar Realty Finance Corp.), Facility Agreement (Northstar Realty Finance Corp.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof;
(bx) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
as described in Section 6.01(b) below) existing or committed on the Closing Date (d) (i) so long as no Default provided, that any such Indebtedness that is owed to any person other than BGI and/or one or Event more of Default has occurred and is continuing or would result from the incurrence its Subsidiaries, in an aggregate amount in excess of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”$5,000,000 shall be set forth in Schedule 6.01) and (iiy) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(eb) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of BGI or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower BGI or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness business or consistent with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrencepast practice or industry practices;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (ie) Indebtedness owing by of BGI to any Restricted Subsidiary and of the Borrower that is not a Loan Party any Subsidiary to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower BGI or any other Subsidiary Subsidiary; provided, that Indebtedness owed by any Loan Party to any Restricted Subsidiary that is not a Loan Party is Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of BGI and its Subsidiaries) shall be subordinated in right of payment to the Loan Obligations pursuant under this Agreement on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of businessbusiness or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness or consistent with past practice or industry practices;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes funds in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (or other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligationscash management services, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers case incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Amendment No. 2 (Barnes Group Inc), Credit Agreement (Barnes Group Inc)
Indebtedness. IncurCreate, create incur, assume or assume suffer to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofunder the Loan Documents;
(b) Indebtedness created hereunder or under outstanding on the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments date hereof and listed on Schedule 7.03 and any unsecured refinancings, refundings, renewals or extensions thereof; provided that (i) the terms and conditions of such extensions, renewals or refinancings of such Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any do not, in the Administrative Agent’s reasonable judgment, materially impair the prospects of repayment of the foregoing Obligations by the Borrowers or impair any Borrower’s creditworthiness and (ii) such extensions, renewals or refinancings of such Indebtedness do not result in an increase in the principal amount of such Indebtedness so extended, renewed or refinanced or add any Borrower as liable with respect thereto if such Borrower was not liable with respect to the original Indebtedness;
(c) Indebtedness pursuant of any Borrower to Hedge Agreements any Subsidiary and of any Subsidiary to any Borrower or any other than for speculative purposesSubsidiary;
(d) (i) so long as no Default Guarantees of the Borrowers or Event any Subsidiary in respect of Default has occurred and is continuing Indebtedness otherwise permitted hereunder of the Borrowers or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtSubsidiary;
(e) obligations (contingent or otherwise) of the Borrowers or any Subsidiary existing or arising under any Swap Contract (including any total rate of return Swap Contract);
(f) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the any Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, provided in the ordinary course of ordinary business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(h) Unsecured Indebtedness;
(i) Indebtedness in respect Other Letter of Cash Management Services in the ordinary course of businessCredit Obligations, up to a maximum amount outstanding at any time not greater than $10,000,000;
(iij) other Indebtedness arising from the occasional honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) funds in the ordinary course of business and not in connection with from an overdraft credit facility granted by the borrowing of money bank or any Hedge Agreementsother financial institution;
(uk) other Secured Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted Indebtedness that is secured by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount assets not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofcomprising Collateral; and
(ccl) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Trust Preferred Indebtedness and such item related Trust Preferred Guarantees and Trust Preferred Securities incurred, executed or issued respectively, as part of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausea Trust Preferred Securities Transaction.
Appears in 2 contracts
Sources: Credit Agreement (KKR Financial Holdings LLC), Credit Agreement (KKR Financial Holdings LLC)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any The Existing Notes, the New Second Secured Notes, other Indebtedness listed existing, or incurred pursuant to facilities existing, on the Closing Date and set forth on Schedule 6.01(a) 6.01 to the 2005 Credit Agreement and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness or, without duplication, replacements of such facilities that would constitute Permitted Refinancing Indebtedness with respect to such facilities if all Indebtedness available to be incurred thereunder were outstanding on the date of such replacement (other than Permitted Refinancing Indebtedness in respect thereofof intercompany indebtedness of the U.S. Borrower or any Subsidiary owed to the U.S. Borrower or any Subsidiary Refinanced with Indebtedness owed to a person other than the U.S. Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the U.S. Borrower and the Subsidiaries pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings (including self-insurance) to until a Qualified IPO), the U.S. Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Credit Agreement (Hexion Specialty Chemicals, Inc.), Credit Agreement (Hexion Specialty Chemicals, Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Amendment Two Effective Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or (including pursuant to Section 2.21) and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedge Hedging Agreements other than for speculative purposespermitted by Section 6.11;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that of (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another any other Subsidiary, (ii) the Borrower to any Subsidiary Loan Party is permitted under Section 6.04(bor (iii) any Subsidiary other than a Subsidiary Loan Party to the Borrower or any other Subsidiary; provided that (A) Indebtedness pursuant to clauses (i) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is of this Section 6.01(e) shall be unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent and (B) Indebtedness pursuant to customary subordination provisionsclause (iii) of this Section 6.01(e) shall be subject to Section 6.04(a);
(gf) Indebtedness (including obligations in respect of letters of credit, in an amount not to exceed, in the aggregate with the Indebtedness under Section 6.01(m)(A) and Section 6.01(v) below, $25.0 million outstanding at any time) in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including (x) those incurred to secure health, safety and environmental obligations in the ordinary course of business, so long as the underlying obligations with respect to any of the foregoing are not Indebtedness for borrowed money and (y) those intended to secure a Guarantee permitted under Section 6.01(v);
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds or obligations under Cash Management Agreements, so long as in each case in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower or other applicable Loan Party or Subsidiary of its incurrence incurrence, and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date, and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation or amalgamation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactionsconsolidation or amalgamation is permitted by this Agreement, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger or consolidation or amalgamation, the time of the assumption and incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)any related transactions, the aggregate outstanding amount Borrower and the other Subsidiaries of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), Holdings shall be in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionPro Forma Compliance;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of any property (real or personal and whether through the direct purchase of property that is or the subject Equity Interests of any person owning such Indebtedness and (iiproperty) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness permitted under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (Agreement in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members order to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any acquisition, lease or sublease permitted hereunder improvement of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund chargesproperty, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate outstanding principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases permitted under Section 6.03, would not exceed $150.0 million; and
provided, any such Indebtedness (cci) all premium shall be secured only by the property acquired or improved (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) any related property and assets subject to a common financing program of the type permitted under this Section 6.01. For purposes 6.01(i)) in connection with the incurrence of determining compliance such Indebtedness and proceeds, improvements and replacements thereof, (ii) shall not be secured by a Lien on Collateral and (iii) shall constitute not more than 100% of the aggregate consideration paid with respect to such property or improvement (and any related property subject to a common financing program of the type permitted under this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb6.01(i)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.;
Appears in 2 contracts
Sources: Credit Agreement (Verso Corp), Credit Agreement (Verso Corp)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) Indebtedness existing on the Closing Date and (other than in the case of any Indebtedness listed existing letters of credit to be replaced with Letters of Credit issued hereunder) set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Company or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Company and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Company or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 thirty (30) days following such incurrence;
(fe) intercompany Indebtedness between of the Company or among any Subsidiary to the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; extent permitted by Section 6.04, provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent; provided, however, further, that balances arising in the ordinary course from a Loan Party in favor of a Subsidiary that is not a Loan Party pursuant to customary subordination provisionsintercompany cash management and/or cash pooling arrangements are not required to be so subordinated;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 three (3) Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc)
Indebtedness. IncurThe Loan Parties will not, create and will not permit any of their Subsidiaries to, directly or indirectly, at any time create, incur, assume or suffer to exist any Indebtedness, exceptIndebtedness other than:
(ai) Indebtedness under the Loan Documents, including any Indebtedness listed created pursuant to the Incremental Revolving Credit Commitments;
(ii) Indebtedness existing on the Closing Date and set forth in Schedule 6.01(a) 8.01(ii), and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(ciii) Indebtedness pursuant (including Capitalized Lease Obligations and purchase money Indebtedness) to Hedge Agreements finance all or any part of the purchase, lease, construction, installment, repair or improvement of property, plant or equipment or other than for speculative purposesfixed or capital assets, in an aggregate principal amount not to exceed $5,000,000 at any time outstanding, and any Refinancing Indebtedness in respect of such Indebtedness; provided that such Indebtedness is incurred within 180 days after the purchase, lease, construction, installation, repair or improvement of the property that is the subject of such Indebtedness;
(div) subject to the requirements set forth in the definitions thereof, (iA) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Term Loan Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (iiB) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtthe Real Property Indebtedness;
(ev) Permitted Hedging Agreements and Bank Product Obligations;
(vi) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees Guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits (whether to current or former employees) or property, casualty or liability insurance (including or self-insurance) to the Borrower insurance in respect of such items, or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement reimbursement-type obligations regarding workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance; provided that, upon the incurrence of any Indebtedness with respect to the foregoing, such obligations shall be are reimbursed not later than 30 sixty (60) days following such incurrence;
(fvii) Indebtedness arising from agreements of any Borrower or any Subsidiary providing for indemnification, earn-outs, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with any Permitted Acquisition or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Acquisition; provided, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrowers and their Subsidiaries in connection with such disposition;
(viii) intercompany Indebtedness between or among the Borrower Borrowers and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) such Indebtedness is only entered into in connection with Investments permitted under Section 8.11 and, to the extent such Indebtedness is owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted a Subsidiary that is not a Loan Party and is subordinated in an aggregate principal amount exceeding $10,000,000, is subject to the Obligations pursuant to customary subordination provisionsan Intercompany Subordination Agreement;
(gix) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(nx) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing Borrowers or the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party Subsidiaries permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees (A) such guarantees are not prohibited by Borrower or the provisions of Section 8.11; (B) no such Guarantee by any other Loan Party under this clause (n) Subsidiary of any Term Loan Indebtedness shall be permitted unless such Subsidiary shall have also provided a Guarantee of a person that the Obligations, and (C) if the Indebtedness being Guaranteed is subordinated to other Indebtedness of the Obligations, such person Guarantee shall be expressly subordinated to the Guarantee of the Obligations to on terms at least as favorable to the same extent Lenders as those contained in the subordination of such underlying Indebtedness is subordinatedIndebtedness;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(pxi) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(qxii) (A) Acquired Indebtedness in an amount not to exceed $30,000,000 at any one time plus (B) additional Acquired Indebtedness so long as the Loan Parties and their Subsidiaries shall be in compliance with the financial covenant set forth in Article IX on a Pro Forma Basis immediately after giving effect to the incurrence of such Indebtedness;
(xiii) Subordinated Debt, if any, subject to the terms set forth in the Subordination Agreement corresponding thereto;
(xiv) Indebtedness consisting incurred in the ordinary course of business in respect of (iA) overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements, and in connection with securities and commodities arising in connection with the acquisition or disposition of Permitted Investments and not any obligation in connection with margin financing, (B) any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities, (C) the endorsement of instruments for deposit or the financing of insurance premiums, (D) deferred compensation or similar arrangements to the employees of the Borrowers or any of its Subsidiaries, (E) obligations to pay insurance premiums or (ii) take or pay obligations contained in supply arrangementsagreements and (F) Indebtedness owed to any Person providing property, casualty, business interruption or liability insurance to the Borrower or any of its Subsidiaries, so long as such Indebtedness shall not be in each caseexcess of the amount of the unpaid cost of, in and shall be incurred only to defer the ordinary course cost of businessthe annual premium for such insurance;
(rxv) unsecured Indebtedness; provided that (iA) so long as no Default any Indebtedness incurred under this clause (xv) does not (1) require any scheduled cash payment or Event mandatory prepayment of Default has occurred principal in respect thereof, or any cash redemption thereof, at any time prior the date that is 91 days after the Termination Date, and (2) mature earlier than the date that is continuing or would result from 91 days after the Termination Date, and (B) the Loan Parties and their Subsidiaries shall be in compliance with the financial covenant set forth in Article IX on a Pro Forma Basis immediately after giving effect to the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at further that, in the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount case of Indebtedness incurred under this clause (xv) by any Subsidiary of any Borrower which is not a Loan Party, except to the extent permitted by clause (iv) of Section 6.01(r) together with 8.11, no Loan Party shall provide any amounts Guarantee of any such Indebtedness incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;any such Subsidiary; and
(s) (ixvi) Indebtedness of owing by Foreign Subsidiaries to non-Affiliates as long as (A) the Loan Parties and (ii) Indebtedness incurred their Subsidiaries shall be in compliance with the financial covenant set forth in Article IX on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that a Pro Forma Basis immediately after giving effect to the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (iiB) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees except to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
clause (y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securitiesiv) of the Borrower or Section 8.11, no Loan Party shall provide any Guarantee of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01owing by Foreign Subsidiaries. For purposes of determining compliance with this Section 6.018.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category more than one of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) the above-listed clauses or (bb))sub-clauses within such clauses, the Borrower Borrowers may, in its their sole discretion, reclassify at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant. Accrual of interest, the accretion of accreted value, amortization of original issue discount, the payment of interest or dividends in the form of additional Indebtedness with the same terms (including pay-in-kind interest), and such item increases in the amount of Indebtedness shall outstanding solely as a result of fluctuations in the exchange rate of currencies, will not be treated deemed to be an incurrence of Indebtedness for purposes of this Section 8.01. Guarantees of, or obligations in respect of letters of credit relating to Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness will not be included in the determination of such amount of Indebtedness; provided that, the incurrence of the Indebtedness represented by such Guarantee or letter of credit, as having been incurred or existing pursuant to such other clausethe case may be, was in compliance with this Section 8.01.
Appears in 2 contracts
Sources: Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ ' compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ ' compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party to the Borrower or another Subsidiary any Loan Party is permitted under shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is shall be subordinated to the Obligations pursuant to customary subordination provisionsObligations;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, financial assurances and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a corporation merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect theretoto, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h) and paragraph (i) of this Section 6.01), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does would not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 50.0 million and (ii) 7.04.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger or consolidation, such assumption or such incurrence, as applicable, for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that determined on a Pro Forma Basis;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness applicable asset permitted under this clause (j) Agreement in order to finance such acquisition or permitted Sale improvement, and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments Permitted Refinancing Indebtedness in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the thereof, in an aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, that at the time of incurrence of such Indebtedness (of, and after giving effect theretoto, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01 and this paragraph (i)) would not exceed the greater of (i) $150.0 50.0 million and (ii) 9.04.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, determined on a Pro Forma Basis;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $50.0 million and 4.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(nl) Guarantees (i) by any Loan Party of the Indebtedness of the Borrower described referred to in clause paragraph (ml) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicablethereof, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); 6.04(b) and (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t))Subsidiary; provided that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations such other Indebtedness to at least the same extent as such underlying Indebtedness is subordinatedextent;
(om) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, business or assets of the Borrower or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(pn) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $5.0 million at any time outstanding;
(o) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit; provided that such Indebtedness is promptly repaid with the proceeds of any drawing on such Letter of Credit;
(qp) Indebtedness consisting of (ix) the financing of insurance premiums or (iiy) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (iq) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the in an aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or $25.0 million at any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Datetime outstanding;
(bbr) unsecured Indebtedness in respect consisting of Senior Unsecured Notes Permitted Junior Debt and any Permitted Refinancing Indebtedness in respect thereof; and;
(ccs) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbq) above; and
(t) Cash Management Obligations and other Indebtedness in respect of this Section 6.01. For purposes of determining compliance with this Section 6.01netting services, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof overdraft protection and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower maysimilar arrangements, in its sole discretioneach case, reclassify such item of Indebtedness in connection with cash management and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausedeposit accounts.
Appears in 2 contracts
Sources: Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness existing on the Effective Date and listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofhereto;
(b) Indebtedness created hereunder or under the other Loan Transaction Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Company or any of the other Restricted Subsidiaries Subsidiary thereof, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 thirty (30) days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (id) Indebtedness owing by consisting of royalty payments or royalty obligations under the ▇▇▇▇▇▇▇ Lease or the ▇▇▇▇▇▇▇ Trust Lease, or under any Restricted Subsidiary other agreement in respect of the Borrower that acquisition of any After Acquired Property the acquisition of which is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing approved by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisionsInvestor;
(ge) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, letters of credit and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations (including land reclamation and other obligations under Mining Permits and Environmental Permits) in the ordinary course of business;
(if) Capital Lease Obligations and purchase money security interest Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received incurred by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that Company at the time of and for the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as purpose of the end acquisition or lease of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations respective asset in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to this paragraph (f) would not in excess of (A) exceed $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;500,000; and
(ng) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as by any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Transaction Party of any Indebtedness of the Borrower Company or any other Subsidiary Loan Transaction Party expressly permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Investment Agreement (Desert Hawk Gold Corp.), Investment Agreement (Desert Hawk Gold Corp.)
Indebtedness. IncurPermit Holdings, create Intermediate Holdings, the U.S. Borrower or any Subsidiary to incur, create, assume or permit to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) created hereunder and any Permitted Refinancing Indebtedness in respect thereofunder the other Loan Documents;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessSubsidiaries pursuant to Swap Agreements permitted by Section 6.13;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the U.S. Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fd) intercompany Indebtedness between of any Borrower to any Subsidiary and any Subsidiary to any Borrower or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; any other Subsidiary, provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower Subsidiaries that is are not a Loan Party Parties to the Borrower or another Borrowers and the Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b6.04(d) and (ii) Indebtedness owing by the of any Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to (the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv“Subordinated Intercompany Debt”) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations on terms reasonably satisfactory to at least the same extent as such underlying Administrative Agent (other than Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness Loan Party in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended loans made by suppliers Fortuna described on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge AgreementsSchedule 6.07);
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Credit Agreement (TRW Automotive Holdings Corp), Credit Agreement (TRW Automotive Holdings Corp)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(ai) Indebtedness existing or committed on the Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth on Schedule 6.01) and (ii) any Permitted Refinancing Indebtedness listed on Schedule 6.01(ain respect thereof (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(i) Indebtedness created hereunder (including pursuant to Section 2.21) and under the other Loan Documents and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedge Hedging Agreements other than entered into for non-speculative purposes;
(d) (i) so long as no Default or Event Indebtedness in respect of Default has occurred self-insurance and is continuing or would result from the incurrence of such Indebtedness, Indebtedness and other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness obligations owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness business or consistent with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrencepast practice or industry norm;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (ie) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower Holdings or another any Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by of any Subsidiary to Holdings, the Borrower or any other Subsidiary Subsidiary; provided, that Indebtedness owed by any Loan Party to any Restricted Subsidiary that is not a Loan Party is incurred pursuant to this Section 6.01(e) shall be subordinated to the Loan Obligations pursuant under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J hereto or on substantially identical subordination terms or other subordination terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent and the Borrower;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, performance and completion guarantees and similar obligations, in each case, case provided in the ordinary course of businessbusiness or consistent with past practice or industry norm, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, funds in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be or other cash management services incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection or consistent with the borrowing of money past practice or any Hedge Agreementsindustry norm;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Indebtedness. Incur(i) The Borrower will not contract, create create, incur, assume or assume suffer to exist any Indebtedness, except:except for, prior to the Disbursement Date, Lender Credit Permitted Indebtedness and, thereafter, the following types of Indebtedness ("Post-Completion Permitted Indebtedness"):
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofof the Borrower incurred under this Agreement;
(b) Indebtedness created hereunder or under incurred after the other Loan DocumentsOperation Date which is not in a principal amount in excess, Credit Agreement Refinancing Indebtednessin the aggregate of $500,000, Indebtedness created under Incremental Revolving Commitments and at any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred time and is continuing accrued expenses or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness current trade accounts payable incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence business or obligations under trade letters of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing credit incurred by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 which are to be repaid in full not more than ninety (90) days after the date on which such Indebtedness is originally incurred to secure health, safety and environmental obligations in finance the ordinary course purchase of businessgoods by the Borrower;
(c) Unsecured Senior Working Capital Indebtedness and Subordinated Secured Working Capital Indebtedness incurred after the Operation Date not exceeding in the aggregate at any one time outstanding $1,500,000, provided that (i) Unsecured Senior Working Capital Indebtedness in respect of Cash Management Services in the ordinary course of business, shall not exceed $500,000 at any one time outstanding; (ii) other any and all Subordinated Secured Working Capital Indebtedness arising from shall be subordinated to the honoring by a bank or other financial institution payment of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower Eximbank Credit in accordance with the provisions of its incurrence and Schedule 8.05(c); (iii) any other cash management and all Subordinated Working Capital Lenders shall, prior to the date on which any Subordinated Secured Working Capital Indebtedness is incurred, become party to the Collateral Trust Agreement and deliver to the Collateral Trustee and Eximbank an opinion of counsel to such Subordinated Working Capital Lender reasonably satisfactory to Eximbank to the effect that the subordination terms set forth in Schedule 8.05(c) hereto constitute the binding obligations of such Subordinated Working Capital Lender enforceable in accordance with their respective terms (subject to customary qualifications); and (iv) any Subordinated Working Capital Lender consisting of Ormat or treasury services entered in an Affiliate of Ormat shall (if it is not a party thereto) accede to the ordinary course Mortgage, Assignment and Pledge Agreement and pledge and deliver to the Collateral Trustee the executed original of businessthe Subordinated Note evidencing its Subordinated Working Capital Loans;
(id) Indebtedness incurred or assumed Third Party Subordinated indebtedness in connection with a Permitted Business Acquisitionan outstanding principal amount not to exceed $2,500,000 at any time; provided, in each casehowever, that (1i) no Event of Default shall have occurred any and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower all Third Party Subordinated Indebtedness shall be able subordinated to incur $1 the payment of Ratio Debt, (3)(xthe Eximbank Credit in accordance with the provisions of Schedule 8.05(c) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing and all Third Party Subordinated Lenders shall, prior to the date on which such Indebtedness incurred is incurred, become party to Refinance the Collateral Trust Agreement and deliver to the Collateral Trustee and Eximbank an opinion of counsel to such Indebtedness; provided Third Party Subordinated Lender reasonably satisfactory to Eximbank to the effect that at the time subordination terms set forth in Schedule 8.05(c) hereto constitute the binding obligations of the incurrence or assumption of any Indebtedness pursuant such Third Party Subordinated Lender enforceable in accordance with their respective terms (subject to clause (i) above (and after giving effect theretocustomary qualifications), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(je) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, secured by purchase money IndebtednessLiens incurred after the Operation Date and otherwise permitted under Section 8.01(c);
(f) Indebtedness constituting lease obligations permitted under Section 8.04;
(g) Optional Subordinated Loans, Indebtedness with respect to mortgage financings, Standby Subordinated Loans and Indebtedness with respect to additions or improvements to Real Property Post- Completion Standby Subordinated Loans in an aggregate outstanding principal amount not to exceed, exceed at any time the time sum of incurrence $5,000,000 plus the outstanding principal amount of such Indebtedness (and after giving effect thereto)any Optional Subordinated Loans made by Ormat pursuant to the terms of the Development Agreement, and together with the Remaining Present Value which bear interest at a rate not in excess of outstanding leases entered into pursuant to Section 6.0310% per annum; provided, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness any and all Optional Subordinated Loans, Standby Subordinated Loans and Post-Completion Standby Subordinated Loans shall be incurred within 270 days after subordinated to the acquisition, lease or improvement payment of the property that is Eximbank Credit in accordance with the subject provisions of such Indebtedness Schedule 8.05(c) and the Collateral Trust Agreement; (ii) all requirements of the Remaining Present Value of outstanding leases entered into Collateral Trust Agreement shall have been satisfied prior to (or contemporaneous with) the incurrence thereof; and (iii) the Person making such Optional Subordinated Loans, Standby Subordinated Loans and Post-Completion Standby Subordinated Loans shall (if it has not previously done so) pledge (pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale an instrument substantially similar in form and Lease-Back Transactions under Section 6.03 if the proceeds scope to Part D of the related Sale Mortgage, Assignment and Lease-Back Transactions are used Pledge Agreement) and deliver to prepay Term the Collateral Trustee the executed original of the Subordinated Note or Subordinated Notes evidencing its Optional Subordinated Loans, Standby Subordinated Loans or Revolving Loans or any Incremental Revolving Commitments (in each casePost-Completion Standby Subordinated Loans, to as the extent commitments in respect thereof are permanently reduced by the amount of such prepayments)case may be;
(kh) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Affiliated Reimbursement Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cci) all premium Contingent Obligations permitted under Section 8.06.
(if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional ii) The Borrower agrees that it will not obligate itself to make regularly scheduled payments during the period when the Eximbank Credit is outstanding of or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of any Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of is Indebtedness (for Borrowed Money other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (quarterly and other than Sections 6.01(a), on a Permitted Payment Date or a date occurring no earlier than eight (b), 8) days after and no later than fifteen (m15) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausedays after a Permitted Payment Date.
Appears in 2 contracts
Sources: Eximbank Credit Agreement (Ormat Technologies, Inc.), Eximbank Credit Agreement (Ormat Technologies, Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements permitted by Section 6.12;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to such acquisition, merger or consolidation, the time of the assumption and incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)any related transactions, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), Borrower shall be in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionPro Forma Compliance;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject of such Indebtedness time of, and (ii) after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case6.03, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 75.0 million and (ii) 9.05.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness consisting of (i) Term Loan Obligations the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $75.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Borrower pursuant to (i) the Second Lien Notes in an aggregate principal amount that is not in excess of $600.0 million, (A) $625.0 million plus (Bii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of any Incremental Term Loans or Incremental Equivalent Term Debt$300.0 million, (iii) the Senior Secured Notes in each case permitted by the Term Loan Credit Agreement as an aggregate principal amount that is not in effect on the Closing Date excess of $325 million and (iiiv) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause paragraph (m1) of this Section 6.01 6.01, so long as the Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof is subordinated substantially on terms as set forth in the Senior Subordinated Notes Indenture with respect to the Senior Subordinated Notes, and so long as any Liens securing the Term Loan Obligations Guarantee of the Second Lien Notes or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Foreign Subsidiary, and (v) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of (A) letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) in the ordinary course of business or (B) letters of credit issued in favor of the Swingline Lender or the Issuing Bank pursuant to arrangements designed to eliminate such Swingline Lender’s or Issuing Bank’s risk with respect to a Defaulting Lender’s participation in Swingline Loans or Letters of Credit, respectively, as contemplated by Section 2.04(a) or 2.05(a), respectively;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) Indebtedness consisting of Permitted Additional Debt and Permitted Refinancing Indebtedness in respect thereof so long as (i) so long as no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom, and (ii) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Total Net First Lien Leverage Ratio on a Pro Forma Basis, is 2.00 Basis shall not be greater than 3.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million1.00;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the in an aggregate amount not to exceed $50.0 million outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04any time;
(t) unsecured Indebtedness 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of businessconnection with Permitted Receivables Financings;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and in the Security Documents (it being understood, however, that such obligations are collateralized by cash or cash equivalentsfor a period of 30 consecutive days during each fiscal year of the Borrower the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed $10.0 million);
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-post petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbw) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 2 contracts
Sources: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Indebtedness. IncurCreate, create issue, incur, assume, become liable in respect of or assume suffer to exist any Indebtedness, except:
(a) Indebtedness of any Indebtedness listed on Schedule 6.01(a) and Loan Party pursuant to any Permitted Refinancing Indebtedness in respect thereofLoan Document;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessBorrower to any Subsidiary and of any Subsidiary Guarantor to the Borrower or any other Subsidiary and of any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor;
(ci) Indebtedness pursuant to Hedge Agreements Guarantee Obligations incurred by the Borrower or any Subsidiary Guarantors of obligations of the Borrower or any other than for speculative purposesSubsidiary Guarantor and (ii) Guarantee Obligations incurred by a Subsidiary that is not a Subsidiary Guarantor of obligations of the Borrower or any other Subsidiary;
(d) (i) so long as no Default or Event of Default has occurred Indebtedness outstanding on the date hereof and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, listed on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (ii) without shortening the maturity thereof or increasing the principal amount thereof except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtexisting commitments unutilized thereunder);
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrencePerson;
(f) intercompany Indebtedness between or among of the Borrower and the Restricted its Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and bonds, completion guarantees guarantees, bankers’ acceptances and similar obligationsobligations and trade-related letters of credit, in each case, case provided in the ordinary course of businessbusiness and not in connection with Indebtedness for money borrowed, including without limitation those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) Indebtedness incurred by Foreign Subsidiaries in an aggregate principal amount outstanding not to exceed $40,000,000 at any one time, and guarantees of such Indebtedness;
(h) Indebtedness assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, and any refinancings, refundings, renewals or extensions thereof (without shortening the maturity thereof or increasing the principal amount thereof except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder);
(i) Indebtedness (including, without limitation, Financing Lease Obligations) secured by Liens permitted by Section 7.3(f) in an aggregate principal amount not to exceed $6,500,000 at any one time outstanding;
(j) additional Indebtedness of the Borrower or any of its Subsidiaries in the aggregate principal amount outstanding (for the Borrower and all Subsidiaries) not to exceed the greater of $50,000,000 and 50% of Consolidated EBITDA for the period of four full consecutive fiscal quarters of the Borrower most recently ended (determined at the time of incurrence of such Indebtedness);
(k) Swap Agreements entered into in the ordinary course of business for non-speculative purposes;
(l) Indebtedness in respect of Cash Management Services in the ordinary course of businessnetting services, (ii) other overdraft protection and similar arrangements, including Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered funds in the ordinary course of business;
(im) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such extent it constitutes Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at by the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans Borrower or any Incremental Revolving Commitments (in each caseof its Subsidiaries arising from agreements providing for indemnification, to the extent commitments in respect thereof are permanently reduced by the amount adjustment of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount purchase price or similar obligations, or from guaranties or letters of Indebtedness incurred pursuant to this clause (l) shall not exceedcredit, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans surety bonds or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens performance bonds securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness performance of the Borrower or any other such Subsidiary Loan Party permitted pursuant to be incurred under this Agreementsuch agreements, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are in connection with Permitted Acquisitions or Dispositions permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated7.5;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(qn) Indebtedness consisting of (i) the financing deferred purchase price of insurance premiums Permitted Acquisitions or (ii) take or pay obligations contained in supply arrangementsearn-outs arising out of Permitted Acquisitions, in each case, so long as (x) the Total Leverage Ratio (as determined on a pro forma basis giving effect to such Permitted Acquisition and any other transactions in connection therewith, and recomputed as of the ordinary course last day of businessthe most recently ended fiscal quarter of the Borrower for which financial statements are available) does not exceed 4.00:1.00 or (y) to the extent such Total Leverage Ratio would exceed 4.00:1.00, the aggregate amount of such Indebtedness shall not exceed, for any fiscal year, when taken together with the amount of Acquisition Consideration paid in reliance on Section 7.7(k) during such fiscal year, $100,000,000;
(o) Indebtedness consisting of deferred purchase price or notes issued to officers, directors and employees to purchase equity interests (or options or warrants or similar instruments) of Borrower, Parent or PubCo;
(p) Indebtedness incurred in connection with the financing of insurance premiums in an amount not to exceed the annual premiums in respect thereof at any one time outstanding;
(q) Incremental Equivalent Debt;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from Investments in the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount form of Indebtedness incurred under this permitted by Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;7.7; and
(s) (i) Indebtedness Guarantee Obligations of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount Parent in respect of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing by any of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by its Subsidiaries other than the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted its Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Second Amendment (RE/MAX Holdings, Inc.), Credit Agreement (RE/MAX Holdings, Inc.)
Indebtedness. IncurHoldings will not, create and will not permit any of its Restricted Subsidiaries to create, incur, assume or assume suffer to exist any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other Credit Documents (and any Incremental Term Loans incurred pursuant to one or more separate facilities as contemplated by Section 2.14, and Permitted Refinancings thereof);
(b) Indebtedness outstanding on the Closing Date and listed on Schedule 6.01(a) 9.04 and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant under Interest Rate Protection Agreements entered into with respect to Hedge other Indebtedness permitted under this Section 9.04 and (ii) under Other Hedging Agreements, in either case so long as the entering into of such Interest Rate Protection Agreements other than or Other Hedging Agreements are bona fide hedging activities and are not for speculative purposes;
(d) (i) so long as no Default or Event Indebtedness of Default has occurred the Borrower and is continuing or would result from the incurrence of such Indebtedness, other its Restricted Subsidiaries evidenced by Capitalized Lease Obligations and purchase money Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtin respect thereof;
(e) Indebtedness owed constituting Intercompany Loans to the extent permitted by Sections 9.05(h) and (including q);
(f) Indebtedness consisting of guaranties (x) by the Qualified Credit Parties of each other’s Indebtedness and lease and other contractual obligations permitted under this Agreement and (y) by non-Credit Parties of each other’s Indebtedness and lease and other contractual obligations permitted under this Agreement;
(g) Indebtedness of a Restricted Subsidiary of the Borrower incurred or acquired pursuant to a Permitted Acquisition or another permitted Investment (or Indebtedness assumed at the time of a Permitted Acquisition or other permitted acquisition of an asset securing such Indebtedness) (any such Indebtedness, “Permitted Acquired Debt”), and any Permitted Refinancing Indebtedness in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such personthereof, in each case, so long as (i) after giving effect to the incurrence, acquisition or assumption of such Indebtedness and application of proceeds thereof, (1) in the ordinary course of business; provided that upon the incurrence case of Indebtedness that is secured on an equal and ratable basis with respect or on a junior basis to reimbursement obligations regarding workers’ compensation claimsthe Obligations, the Secured Net Leverage Ratio for the Calculation Period most recently ended (x) does not exceed 3.50:1.00 or (y) is no greater than such obligations shall be reimbursed not later than 30 days following ratio as in effect immediately prior to such incurrence;
, acquisition or assumption, or (f2) intercompany in the case of Indebtedness between that is unsecured or among that is Subordinated Indebtedness, the Borrower and Interest Coverage Ratio for the Restricted Subsidiaries Calculation Period most recently ended (x) is not less than 2.00:1.00 or between and among Restricted Subsidiaries(y) is no less than such ratio as in effect immediately prior to such incurrence, acquisition or assumption; provided that (i) such Indebtedness owing by any Restricted Subsidiary shall be the only obligation of the Borrower that is not a Loan Party to Person or in respect of the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and asset being acquired; (ii) if such Indebtedness owing by is secured on a pari passu basis relative to the Borrower Obligations, such Indebtedness (x) shall not mature prior to the Latest Maturity Date then in effect and (y) the Weighted Average Life to Maturity of such Indebtedness is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Term Loans, (iii) if such Indebtedness is unsecured, secured on a junior basis relative to the Obligations or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant Obligations, such Indebtedness shall not mature or require any scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, repayment or sinking fund obligation (other than customary subordination provisions;
(g) Indebtedness in respect offers to repurchase on a change of performance bondscontrol, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligationsasset sale or casualty event), in each case, provided prior to the date that is 91 days after the Latest Maturity Date then in effect and (iv) the ordinary course holders of businesssuch Indebtedness (or their representative) and the Administrative Agent shall be party to the Initial Intercreditor Agreement (or appropriate Other Intercreditor Agreement); provided, including those incurred to secure healthfurther, safety and environmental obligations in that the ordinary course aggregate principal amount of businessIndebtedness incurred, acquired or assumed by Restricted Subsidiaries that are not Guarantors outstanding under this clause (g) shall not at any time exceed $15,000,000;
(ih) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 three Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of businessincurrence;
(i) Indebtedness incurred of the Borrower and its Restricted Subsidiaries with respect to performance bonds, surety bonds, appeal bonds, customs bonds, worker’s compensation claims and similar obligations, required in the ordinary course of business or assumed in connection with the enforcement of rights or claims of the Borrower or any of its Restricted Subsidiaries or in connection with judgments that do not result in a Permitted Business Acquisition; provided, in each case, (1) no Default or an Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition (including guarantees or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) obligations of the Borrower shall be able or any Restricted Subsidiary with respect to incur $1 letters of Ratio Debtcredit supporting such performance, (3)(x) if such Indebtedness incurred appeal, customs or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred surety bonds or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect theretoworkers’ compensation claims), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of Credit Parties under the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, ABL Loan Documents (and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the thereof) in an aggregate principal amount of such prepayments)not to exceed $50,000,000 at any time outstanding;
(k) [Reserved]Indebtedness of the Borrower or any of its Restricted Subsidiaries which may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments, earnouts and similar obligations in connection with the acquisition or disposition of assets in accordance with the requirements of this Agreement (including the Purchase Agreement), so long as any such obligations are those of the Person making the respective acquisition or sale, and are not guaranteed by any other Person except as permitted by Section 9.04(f);
(l) Indebtedness owed to any Person providing property, casualty, liability, or other unsecured Indebtedness; provided that insurance to the aggregate outstanding principal Borrower or any of its Restricted Subsidiaries, so long as the amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as is not in excess of the end amount of the fiscal quarter immediately prior unpaid cost of, and shall be incurred only to defer the date of cost of, such incurrence insurance for the period in which Required Financial Statements have been delivered pursuant to Section 5.04such Indebtedness is incurred and such Indebtedness is outstanding only for a period not exceeding twelve months;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to of treasury, depositary and cash management services or automated clearinghouse transfer of funds, including without limitation the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Cash Management Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(n) Indebtedness of the Borrower or any Restricted Subsidiary in respect of indemnification, working capital or similar adjustments of purchase price, “earn-out” or similar performance-based deferred purchase price arrangements, non-competes, transition services or similar obligations under the Purchase Agreement or otherwise incurred in connection with Permitted Acquisitions;
(o) any Credit Agreement Refinancing Indebtedness;
(i) Contribution Indebtedness; provided that immediately before and after giving effective thereto, no Default or Event of Default shall have occurred and be continuing and (ii) any Permitted Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of Indebtedness outstanding under this clause (p) shall not at any time exceed $15,000,000;
(q) Permitted Unsecured Ratio Debt and any Permitted Refinancing Indebtedness in respect thereof; provided that the aggregate principal amount of Indebtedness incurred by Restricted Subsidiaries that are not Guarantors outstanding under this clause (q) shall not at any time exceed $15,000,000;
(r) Indebtedness of the Borrower that is secured on an equal and ratable basis with or on a junior basis to the Obligations (and which may be guaranteed by the other Credit Parties), so long as (i) after giving effect to the incurrence and application of proceeds thereof, the Secured Net Leverage Ratio for the Calculation Period most recently ended does not exceed 3.50:1.00, (ii) such Indebtedness shall not be guaranteed by any Person other than the Guarantors, (iii) no such Indebtedness shall be secured by any asset of the Borrower or any of its Restricted Subsidiaries other than the Collateral, (iv) such Indebtedness shall not mature or require any scheduled amortization or scheduled payments of principal and is not subject to mandatory redemption, repurchase, repayment or sinking fund obligation (other than customary offers to repurchase on a change of control, asset sale or casualty event and customary acceleration rights after an event of default and prepayment requirements substantially similar to those applicable to the Term Loans), in each case, prior to the date that is 91 days after the Latest Maturity Date then in effect, and (v) the holders of such Indebtedness (or their representative) and the Administrative Agent shall be party to the Initial Intercreditor Agreement and a Pari Passu Intercreditor Agreement or a Junior Lien Intercreditor Agreement (or appropriate Other Intercreditor Agreement) (and any Permitted Refinancing Indebtedness in respect thereof); provided, further, that the aggregate principal amount of Indebtedness incurred by Restricted Subsidiaries that are not Guarantors outstanding under this clause (r) shall not at any time exceed $15,000,000;
(s) [Reserved];
(t) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence thereof, or would result therefrom, additional Indebtedness of any Indebtedness pursuant to clause (i) above (the Borrower and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by its Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the in an aggregate outstanding principal amount of Indebtedness incurred pursuant not to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (ix) $45.0 million 30,000,000 and (iiy) 2.5045.0% of Consolidated Total Assets EBITDA as of the end last day of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04most recent Test Period;
(tu) unsecured Indebtedness in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of businessmoney;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other a Restricted Subsidiary to current future, present or former officers, managersdirectors, directors and employees, members of management or consultants thereof or employeesany direct or indirect parent thereof, their respective estates estates, spouses, former spouses, domestic partners or family members former domestic partners, in each case to finance the purchase or redemption of Equity Interests of the Borrower Holdings, a Restricted Subsidiary or any Parent Entity of their direct or indirect parent companies permitted by Section 6.069.03(c) hereof;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(zi) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries that are not Qualified Credit Parties in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a an aggregate principal amount outstanding at any time not to exceed the greater of (x) $15,000,000 and (y) 22.5% of Consolidated EBITDA as of the last day of the most recent Test Period and (ii) letters of credit issued for the account of Restricted Subsidiaries that are not Qualified Credit Parties in an aggregate amount equal outstanding at any time not to the Net Cash Proceeds received from the issuance exceed $7,500,000; and
(x) Indebtedness incurred on behalf of, or sale representing guarantees of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) Indebtedness of, joint ventures of the Borrower or any of the other its Restricted Subsidiaries not to exceed, at any one time outstanding, the greater of (other than any such sale to Holdings or any x) $15,000,000 and (y) 22.5% of Consolidated EBITDA as of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) last day of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausemost recent Test Period.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Jill Intermediate LLC)
Indebtedness. IncurNo Loan Party shall, create nor shall it permit any of its Subsidiaries or the LS&Co. Trust to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for by the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the U.S. Borrower or any of its Subsidiaries to the other Restricted Subsidiaries pursuant to reimbursement U.S. Borrower or indemnification obligations to such person, in each case, in the ordinary course any of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted its Subsidiaries; provided that (ix) any Indebtedness owing owed by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted a Subsidiary that is not a Loan Party is shall be subordinated to the Obligations pursuant (in the case of Indebtedness of any U.S. Loan Party) or the Canadian Obligations (in the case of Indebtedness of any Canadian Loan Party) and (y) any Indebtedness owed by a U.S. Loan Party to customary subordination provisionsa Canadian Loan Party shall be subordinated to the Obligations;
(gb) Indebtedness of the U.S. Loan Parties issued in a Capital Markets Transaction, provided such Indebtedness is unsecured and such Indebtedness does not have a stated maturity date or required principal payments earlier than 91 days after the Maturity Date;
(c) Guarantees of the U.S. Borrower under the LS&Co. Trust Agreement; provided that the investment activities of the LS&Co. Trust are in compliance with the Investment Policies;
(d) Guarantees of (i) the U.S. Loan Parties in respect of performance bondsthe obligations of Loan Parties, bid bonds, appeal bonds, surety bonds (ii) the Canadian Loan Parties in respect of the obligations of Canadian Loan Parties and completion guarantees and similar obligations(iii) Foreign Subsidiaries that are not Loan Parties in respect of the obligations of Foreign Subsidiaries that are not Loan Parties, in each case, provided arising under or in the ordinary course of business, including those incurred to secure health, safety and environmental obligations connection with Banking Services in the ordinary course of business;
(ie) Indebtedness of the U.S. Borrower and its Subsidiaries outstanding on the Second Amendment and Restatement Effective Date and listed on Schedule 6.01 and any Permitted Refinancing Indebtedness in respect thereof; provided that intercompany Indebtedness set forth on Schedule 6.01 may not be refinanced pursuant to Section 6.01(e) with third-party Indebtedness;
(f) Indebtedness of Cash Management Services the Loan Parties under the Loan Documents;
(g) Indebtedness of the U.S. Borrower and its Subsidiaries secured by Liens permitted by Section 6.02(c) not to exceed in the aggregate $200,000,000 at any time outstanding;
(h) Indebtedness of the U.S. Borrower or any Subsidiary in respect of Swap Agreements permitted under Section 6.07;
(i) so long as the Minimum Intercompany Transaction Requirement is met (unless pro forma Availability is not less than the greater of (x) $75.0 million and (y) 10% of the Line Cap, in which case, the Minimum Intercompany Transaction Requirement need not be met), Indebtedness (in the case of Indebtedness of (A) any U.S. Loan Party to any Subsidiary that is not a U.S. Loan Party or (B) any Canadian Loan Party to any Subsidiary that is not a Loan Party, maturing at least six months after the Maturity Date) of the U.S. Borrower and its Subsidiaries to LSIFCS or any other Affiliate of the U.S. Borrower providing services similar to the services provided by LSIFCS in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such business and Indebtedness (in the case of Indebtedness of (A) any U.S. Loan Party to any Subsidiary that is not a U.S. Loan Party or (B) any Canadian Loan Party to any Subsidiary that is not a Loan Party, maturing at least six months after the Maturity Date) of LSIFCS or any other than credit or purchase cards) is extinguished within 10 Business Days after notification is received Affiliate of the U.S. Borrower providing services similar to the services provided by LSIFCS to the U.S. Borrower and any of its incurrence and (iii) any other cash management or treasury services entered Subsidiaries in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the U.S. Borrower described and its Subsidiaries in clause (m) the form of this Section 6.01 so long as any Liens securing the Term Loan Obligations or Real Estate Financing Transactions and any Permitted Refinancing Indebtedness in respect thereof are subject to thereof, provided the ABL/Term Loan Intercreditor Agreement aggregate principal amount of all Indebtedness permitted under this Section 6.01(j) and Section 6.01(k) (including all such Indebtedness existing on the Second Amendment and Restatement Effective Date and listed on Schedule 6.01) does not exceed in the case of Term Loan Obligationsaggregate $350,000,000 at any time outstanding;
(k) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the U.S. Borrower or and its Subsidiaries in the form of Equipment Financing Transactions and any other Subsidiary Loan Party Permitted Refinancing Indebtedness in respect thereof, provided the aggregate principal amount of all Indebtedness permitted to be incurred under this Agreement, Section 6.01(k) and Section 6.01(j) (iiiincluding all such Indebtedness existing on the Second Amendment and Restatement Effective Date and listed on Schedule 6.01) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is does not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes exceed in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or aggregate $350,000,000 at any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinatedtime outstanding;
(ol) Indebtedness arising from agreements of the U.S. Borrower or any of the other Restricted its Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this AgreementEquity Interests of a Subsidiary, other than Guarantees guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries for the purpose Equity Interests of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of CreditSubsidiary; provided, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangementshowever, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the maximum aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness liability in respect of obligations to pay all such Indebtedness shall at no time exceed the deferred purchase price of goods gross proceeds actually received by the U.S. Borrower or services or progress payments such Subsidiary in connection with such goods disposition;
(m) customary unsecured indemnification obligations and services so long as such obligations are other unsecured Guarantees of the U.S. Borrower incurred in connection with open accounts extended by suppliers on customary trade terms any Permitted Foreign Receivables Transaction or any Foreign Inventory Transaction;
(which require that all such payments be made within 60 days after the incurrence n) Indebtedness of the related obligations) U.S. Borrower to any of its Subsidiaries or of any of its Subsidiaries to any of its Subsidiaries in connection with transactions incurred in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal an amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) value thereof and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Daterelated servicing fees;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Indebtedness. IncurThe Loan Parties will not, create and will not permit any of their Subsidiaries to, directly or indirectly, at any time create, incur, assume or suffer to exist any Indebtedness, exceptIndebtedness other than:
(ai) Indebtedness under the Loan Documents, including any Indebtedness listed created pursuant to the Incremental Revolving Credit Commitments;
(ii) Indebtedness existing on the Closing Date and set forth in Schedule 6.01(a) 8.1(ii), and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(ciii) Indebtedness pursuant (including Capitalized Lease Obligations and purchase money Indebtedness) to Hedge Agreements finance all or any part of the purchase, lease, construction, installment, repair or improvement of property, plant or equipment or other than for speculative purposesfixed or capital assets, in an aggregate principal amount not to exceed $750,000 at any time outstanding, and any Refinancing Indebtedness in respect of such Indebtedness; provided that such Indebtedness is incurred within 180 days after the purchase, lease, construction, installation, repair or improvement of the property that is the subject of such Indebtedness;
(div) subject to the requirements set forth in the definitions thereof, (iA) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Term Loan Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (iiB) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtthe Real Property Indebtedness;
(ev) Permitted Hedging Agreements;
(vi) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees Guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits (whether to current or former employees) or property, casualty or liability insurance (including or self-insurance in respect of such items, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that that, upon the incurrence of any Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 sixty (60) days following such incurrence;
(fvii) Indebtedness arising from agreements of any Borrower or any Subsidiary providing for indemnification, earn-outs, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with any Permitted Acquisition or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Acquisition; provided, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrowers and their Subsidiaries in connection with such disposition;
(viii) intercompany Indebtedness between or among the Borrower Borrowers and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) such Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is only entered into in connection with Investments permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated 8.11 and, to the Obligations pursuant extent such Indebtedness is in an aggregate principal amount exceeding $1,500,000, is subject to customary subordination provisionsan Intercompany Subordination Agreement;
(gix) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(nx) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing Borrowers or the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party Subsidiaries permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees (A) such guarantees are not prohibited by Borrower or the provisions of Section 8.11; (B) no such Guarantee by any other Loan Party under this clause (n) Subsidiary of any Term Loan Indebtedness shall be permitted unless such Subsidiary shall have also provided a Guarantee of a person that the Obligations, and (C) if the Indebtedness being Guaranteed is subordinated to other Indebtedness of the Obligations, such person Guarantee shall be expressly subordinated to the Guarantee of the Obligations to on terms at least as favorable to the same extent Lenders as those contained in the subordination of such underlying Indebtedness is subordinatedIndebtedness;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(pxi) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(qxii) Acquired Indebtedness in an amount not to exceed $5,000,000 at any one time;
(xiii) Subordinated Debt, if any, subject to the terms set forth in the Subordination Agreement corresponding thereto;
(xiv) Indebtedness consisting in respect of the Closing Date LC and, for a period of time not to exceed 155 days after the Closing Date (or such longer time as the Agent may agree in its sole discretion), the Closing Date Hedging Obligations; and
(xv) Indebtedness incurred in the ordinary course of business in respect of (iA) overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements, and in connection with securities and commodities arising in connection with the acquisition or disposition of Permitted Investments and not any obligation in connection with margin financing, (B) any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities, (C) the endorsement of instruments for deposit or the financing of insurance premiums, (D) deferred compensation or similar arrangements to the employees of the Borrowers or any of its Subsidiaries, (E) obligations to pay insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) agreements and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (iF) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf ofowed to any Person providing property, casualty, business interruption or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant liability insurance to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted its Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after shall not be in excess of the Maturity Date;
(bb) Indebtedness in respect amount of Senior Unsecured Notes the unpaid cost of, and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all shall be incurred only to defer the cost of the annual premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01for such insurance. For purposes of determining compliance with this Section 6.018.1, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category more than one of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb))the above-listed clauses, the Borrower Borrowers may, in its their sole discretion, reclassify at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant. Accrual of interest, the accretion of accreted value, amortization of original issue discount, the payment of interest or dividends in the form of additional Indebtedness with the same terms (including pay-in-kind interest), and such item increases in the amount of Indebtedness shall outstanding solely as a result of fluctuations in the exchange rate of currencies, will not be treated deemed to be an incurrence of Indebtedness for purposes of this Section 8.1. Guarantees of, or obligations in respect of letters of credit relating to Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness will not be included in the determination of such amount of Indebtedness; provided that, the incurrence of the Indebtedness represented by such Guarantee or letter of credit, as having been incurred or existing pursuant to such other clausethe case may be, was in compliance with this Section 8.1.
Appears in 2 contracts
Sources: Loan and Security Agreement (Trade Desk, Inc.), Loan and Security Agreement (Trade Desk, Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary of the Borrower);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower and its Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.12;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted its Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of businessPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower and or any of its Subsidiaries owing to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is extent permitted under by Section 6.04(b) and (ii) 6.04, provided that such Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent (the “Subordinated Intercompany Debt”);
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(h) (i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any of its Subsidiaries after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger, amalgamation or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger, amalgamation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; , provided that that, solely with respect to a Person being merged into, amalgamated or consolidated with the Borrower or any of its Subsidiaries and Indebtedness being assumed in connection with the acquisition of assets, the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect thereto)to, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r)such acquisition, in each casemerger, by Restricted Subsidiaries that are not Guarantors does amalgamation or consolidation, such assumption or such incurrence, as applicable would not exceed U.S. $50.0 million30,000,000;
(ji) Capital Lease Obligations, Obligations and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal by the Borrower or any of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately its Subsidiaries prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 90 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness respective asset permitted under this clause (j) Agreement in order to finance such acquisition, lease or permitted Sale improvement, and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof are subject would not exceed U.S. $25,000,000;
(j) Capital Lease Obligations incurred by the Borrower or any of its Subsidiaries in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other unsecured Indebtedness, in an aggregate principal amount at any time outstanding pursuant to the ABL/Term this Section 6.01(k) not to exceed U.S. $50,000,000;
(l) Guarantees (i) by any Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower any other Loan Party or any other Subsidiary Loan Party permitted to be incurred under this Agreement, of the Borrower and (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (ivii) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) the Borrower or any of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t))its Subsidiaries; provided that Guarantees by the Borrower or any other Loan Party of its Subsidiaries under this clause (nSection 6.01(l) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(om) Indebtedness arising from agreements of the Borrower or any of the other Restricted its Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary of Borrower, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary of the Borrower for the purpose of financing any such Permitted Business Acquisitionacquisition;
(pn) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(qo) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained Permitted Senior Unsecured Debt in supply arrangements, in each case, in the ordinary course of businessan aggregate principal amount not to exceed U.S. $200,000,000;
(rp) Indebtedness of the Loan Parties pursuant to the 364-Day Credit Facility and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(q) (i) so long as no Default or Event of Default has occurred and is continuing or would result from Indebtedness incurred and/or assumed in connection with Section 6.04(j); provided that the incurrence aggregate amount of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 outstanding pursuant to 1.00 or greater (“Ratio Debt”this Section 6.01(q) shall not exceed U.S. $100,000,000 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionIndebtedness;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(wr) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofinsurance premium financing arrangements; and
(ccs) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbr) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Sources: Revolving Credit Agreement (Frank's International N.V.)
Indebtedness. IncurNo Borrower shall, create nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, incur, create, assume directly or indirectly, or suffer to exist any Indebtedness (including without limitation any Guarantee Obligation in respect of Indebtedness of its Unrestricted Subsidiaries and any Receivables Facility Attributed Indebtedness, except) except for:
(a) any Indebtedness listed on Schedule 6.01(a) incurred pursuant to this Agreement and any Permitted Refinancing Indebtedness in respect thereofthe other Loan Documents;
(b) Indebtedness created hereunder of a Borrower or under its Subsidiaries which are parties to the other Loan Documents, Subsidiary Guarantee Agreement pursuant to the Term Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and the Loan Documents (as defined in the Term Credit Agreement) and guarantees thereof by any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessSubsidiary Guarantor;
(c) Indebtedness pursuant to Hedge Agreements (other than for speculative purposesIntercompany Indebtedness) outstanding on the Closing Date listed on Schedule 6.5(d) hereto;
(d) Indebtedness resulting from the extension, renewal or refinancing or successive refinancing (whether in whole or in part) of any Indebtedness, permitted under Section 8.2(c); provided, however, that (i) so long the principal amount of any such refinancing Indebtedness (as no Default or Event determined as of Default has occurred and is continuing or would result from the date of the incurrence of such Indebtednessrefinancing Indebtedness in accordance with GAAP) does not exceed the principal amount of the Indebtedness refinanced thereby on such date plus the amount of accrued and unpaid interest and fees (including call premiums) and expenses incurred in connection with such refinancing, (ii) the Weighted Average Life to Maturity of such Indebtedness is not decreased, (iii) the covenants, defaults and similar provisions applicable to such refinancing Indebtedness or obligations are customary market terms reasonably satisfactory to the Administrative Agent and do not conflict in any material respect with the provisions of this Agreement and (iv) the terms of such refinancing Indebtedness shall be reasonably satisfactory to the Administrative Agent. In the case of any Indebtedness which is subordinated to the Obligations, such refinancing Indebtedness shall be subordinated to the Obligations on the same terms or on such other terms as may be approved by the Administrative Agent.
(e) Permitted Unsecured Debt of the Company and guarantees thereof by a Restricted Subsidiary consisting of Permitted Unsecured Debt of such Restricted Subsidiary; provided, that Borrower shall have complied with the mandatory prepayment requirements of Section 4.2(e) of the Term Credit Agreement;
(f) Indebtedness of any Foreign Subsidiary (or, to the extent such Indebtedness is incurred with respect to its international activities, Huntsman International Trading Corporation) and guarantees thereof by a Borrower and/or its Subsidiaries pursuant to over-draft lines or similar extensions of credit such that the aggregate amount of such Indebtedness under this clause outstanding at any one time does not exceed $5,000,000 (or the dollar equivalent thereof determined on a quarterly basis);
(g) Intercompany Indebtedness to the extent permitted by Sections 8.7(c), (e), (f) and (g); provided, however, that in the event of any subsequent issuance or transfer of any Capital Stock which results in the holder of such Indebtedness ceasing to be a Restricted Subsidiary of a Borrower or any subsequent transfer of such Indebtedness (other than to a Borrower or any of its Restricted Subsidiaries) such Indebtedness shall be required to be permitted under another clause of this Section 8.2; provided, further, however, that (x) such Intercompany Indebtedness arising after the Closing Date shall be evidenced by a Pledged Intercompany Note and (y) any loan or advance to any Borrower shall be unsecured;
(h) Indebtedness secured by Liens permitted by Section 6.02(u8.1(b) so long asor 8.1(j) or constituting Capitalized Lease Obligations or Indebtedness under Operating Financing Leases, on a Pro Forma Basisprovided, that, (x) all such Capitalized Lease Obligations are permitted under Section 9.1 and (y) the Senior Secured Leverage Ratio is not greater than 5.25:1.00 sum, without duplication, of (i) the “Leverage Ratio Debt”) and aggregate outstanding Capitalized Lease Obligations plus (ii) the aggregate outstanding Indebtedness under Operating Financing Leases plus (iii) the aggregate outstanding principal amount of such Indebtedness secured by Liens permitted by Section 8.1(b) at any Permitted Refinancing time shall not exceed $20,000,000; and any extension, renewal or replacement thereof provided such Indebtedness incurred to Refinance such Leverage Ratio Debtis not increased and is not secured by any additional assets or property;
(ei) Indebtedness owed with respect to (including obligations Hedging Agreements entered into in respect the ordinary course of letters of credit business in order to manage existing or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensationanticipated interest rate, healthexchange rate, disability commodity or other employee benefits revenue or propertyexpense risk, casualty or liability insurance and not for speculative purposes, in any case;
(including self-insurancej) to the Indebtedness consisting of Guarantee Obligations of any Subsidiary of a Borrower or any of the Obligations under any Loan Document or consisting of a guarantee of obligations of a Restricted Subsidiary under any lease or other Restricted Subsidiaries pursuant agreement entered into in the ordinary course of business not constituting Indebtedness and for which the liability with respect thereto is not required to reimbursement or indemnification be reflected on a balance sheet prepared in accordance with GAAP;
(k) Indebtedness consisting of Guarantee Obligations incurred to satisfy bonding obligations to such person, not in each case, excess of $15,000,000 at any one time which arise in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];and
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall the Senior Secured Notes Indenture not exceedto exceed $455,400,000 outstanding on the Closing Date and evidenced by the Senior Secured Notes and additional Senior Secured Notes issued after the Closing Date and evidenced by the Senior Secured Notes Indenture, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior but only to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) extent that the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that such additional Senior Secured Notes is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other greater than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and 25,000,000 minus (ii) 2.50% the amount of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered Additional Term B Loans incurred pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence 2.4 of the related obligations) in the ordinary course of business Term Credit Agreement; and not in connection with the borrowing of money or guarantees thereof by any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01Guarantor. For purposes of determining compliance with this Section 6.018.2, (A) any Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness entity outstanding when it becomes a Subsidiary shall be treated as having deemed to have been incurred or existing pursuant to such other clauseat that time.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 60 days following such incurrence;
(fe) intercompany Indebtedness between or among evidenced by the Global Intercompany Note of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; any other Subsidiary, provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant to customary the subordination provisionsterms set forth in the Global Intercompany Note;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, financial assurances and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services netting services, overdraft protection and similar arrangements, in the ordinary course of businesseach case, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other in connection with cash management or treasury services entered in the ordinary course of businessand deposit accounts;
(i) Indebtedness incurred assumed or assumed acquired in connection with a Permitted Business Acquisition; providedAcquisitions, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 is not created in contemplation of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debtevent, the First Lien Leverage Ratio shall aggregate principal amount thereof at the time of such acquisition or assumption together with Indebtedness outstanding pursuant to paragraph (i) of this Section 6.01, this paragraph (h) and the Remaining Present Value of leases permitted under Section 6.03 not to exceed the Closing Date First Lien Leverage Ratio greater of (x) $10.0 million and (y) if such Indebtedness incurred an amount equal to 3.0% of the Combined revenues of the Borrower for the period of four fiscal quarters most recently ended on or assumed is secured Indebtedness other than First Lien Debt, prior to the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption date of Indebtedness determination for which financial statements are available; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed the greater of (x) $10.0 million and (y) an amount equal to 3.0% of the Combined revenues of the Borrower for the period of four fiscal quarters most recently ended on or prior to the date of determination for which financial statements are available;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) (i) Vectra Indebtedness in an aggregate principal amount that is not in excess of $[ ]2 minus the subject amount of such all prepayments or other payments of the principal of the Vectra Indebtedness and (ii) Indebtedness under, and meeting the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating requirements of, the Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations Marketing Fund Trusts Facility in an aggregate principal amount not in excess of (A) to exceed $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness10,000,000;
(nl) Guarantees (i) of the Indebtedness of by Holdco, the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Subsidiary Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iiiii) by Holdco, the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 6.04(b), (other than Section 6.04(t)); iii) by any Foreign Subsidiary of Indebtedness of another Foreign Subsidiary, and (iv) by Holdco the Borrower or any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(e) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)r); provided that Guarantees by Holdco, the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(1) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations pursuant to at least provisions substantially similar to those set forth in the same extent as such underlying Indebtedness is subordinatedGlobal Intercompany Note or otherwise on terms reasonably satisfactory to the Required Lenders;
(om) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment acquisition or the disposition of any business, assets (including Equity Interests of Subsidiaries) of the Borrower or Subsidiaries not prohibited any Subsidiary permitted by this AgreementSection 6.05, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, business or assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisitionacquisition;
(n) letters of credit or bank guarantees having an aggregate face amount not in excess of $5.0 million;
(o) [Intentionally Omitted];
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (ix) the financing of insurance premiums or (iiy) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(rq) unsecured Indebtedness consisting of (ix) so long as Permitted Debt Securities and (y) Permitted Refinancing Indebtedness in respect thereof; provided that, in the case of clause (x), after giving effect any such incurrence, no Default or Event of Default has shall have occurred and is be continuing or would result from and the incurrence of such Indebtedness, other Indebtedness so long as Borrower shall be in compliance with the Fixed Charge Coverage Ratio, Financial Performance Covenants on a Pro Forma Basis, is 2.00 .
(r) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to 1.00 exceed $10.0 million outstanding at any time;
(s) unsecured Guarantee by the Borrower of (i) the Vectra Indebtedness (the portion of the Vectra Indebtedness so guaranteed not to exceed $[ ]3 in aggregate principal amount minus the amount of all prepayments or greater (“Ratio Debt”other payments of the principal of the Vectra Indebtedness) and (ii) any the Indebtedness under the Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at Marketing Fund Trusts Facility (the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence portion of such Indebtedness (and after giving effect thereto) the greater of (i) so guaranteed not to exceed $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.0410,000,000 in aggregate principal amount);
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder Indebtedness under equipment financings provided to franchisees (the portion of real property entered into by the Borrower or any other Restricted Subsidiary such Indebtedness so guaranteed not to exceed $5.0 million in the ordinary course of businessaggregate principal amount);
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aau) unsecured Indebtedness owed to vendors under vendor agreements which can be satisfied though delivery of product rather than cash payments in a principal amount not to exceed an amount equal to manner substantially consistent with the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) past practice of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity DateBorrower;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: First Lien Credit Agreement
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not an Affiliate of any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposesSwap Agreements;
(d) (i) so long as no Default Indebtedness of Intermediate Holdings or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness Subsidiary owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Intermediate Holdings or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) Indebtedness of Intermediate Holdings or any Subsidiary to Intermediate Holdings or any other Subsidiary; provided, that, other than in the case of intercompany Indebtedness between or among current liabilities incurred in the Borrower ordinary course of business in connection with the cash management operations of Intermediate Holdings and the Restricted Subsidiaries or between and among Restricted to finance working capital needs of the Subsidiaries; provided that , (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party owing to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by the of any Borrower to Intermediate Holdings or any Subsidiary and Indebtedness of any other Subsidiary Loan Party to Intermediate Holdings or any Restricted Subsidiary that is not a Loan Party is (the “Subordinated Intercompany Debt”) shall, if legally permissible, be subordinated to the Obligations pursuant and the Guarantees of the Obligations on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness of Intermediate Holdings or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to Intermediate Holdings or the Borrower applicable Subsidiary of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with Intermediate Holdings or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger, amalgamation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, amalgamation or consolidation, the time of the assumption and incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)any related transactions, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are Senior Secured Leverage Ratio on a Pro Forma Basis shall not Guarantors does not exceed $50.0 millionbe greater than 3.75 to 1.00;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect by Intermediate Holdings or any Subsidiary prior to installationsor within 270 days after any acquisition, repairs, lease or improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect otherwise permitted under this Agreement in order to mortgage financingsfinance such acquisition or improvement, and any Permitted Refinancing Indebtedness with in respect to additions or improvements to Real Property thereof, in an aggregate outstanding principal amount not to exceed, outstanding that at the time of incurrence of such Indebtedness (of, and after giving effect thereto)to, and the incurrence thereof, together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03, would not exceed the greater of (i) $100.0 225.0 million and (ii) 7.05.0% of Consolidated Total Assets as of the end of the most recent fiscal quarter immediately prior to the date of such Indebtedness is incurred incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, ;
(j) Capital Lease Obligations incurred by Intermediate Holdings or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the Indebtedness of Intermediate Holdings or any Subsidiary, in an aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, outstanding that at the time of incurrence of such Indebtedness (of, and after giving effect thereto) to, the incurrence thereof, would not exceed the greater of (i) $150.0 225.0 million and (ii) 9.05.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(ml) Indebtedness consisting of Intermediate Holdings pursuant to (i) Term Loan Obligations the Senior Unsecured Notes, in an aggregate principal amount outstanding that is not in excess of $1,355,000,000, (A) $625.0 million plus (Bii) the Senior Subordinated Notes in an aggregate principal amount outstanding that is not in excess of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date $595,000,000 and (iiiii) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by Intermediate Holdings or any of the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause paragraph (ml) of this Section 6.01 6.01, so long as any Liens securing Guarantee of the Term Loan Obligations Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof are subject is subordinated to the ABL/Term Loan Intercreditor Agreement (Obligations and Guarantees of the Obligations substantially on terms as set forth in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent Senior Subordinated Notes Indenture with and no less favorable respect to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicableSenior Subordinated Notes, (ii) by Intermediate Holdings any Borrower or any Subsidiary Loan Party of any Indebtedness of the any Borrower or any other Subsidiary Loan Party permitted to be incurred under this AgreementAgreement (provided that any Borrower or Subsidiary Loan Party that provides a guarantee of the Notes shall also provide a guarantee of the Obligations), (iii) by Intermediate Holdings, any Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Intermediate Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Party, and (v) by any Subsidiary of Indebtedness of Foreign Subsidiaries that are not Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) or 6.01(w) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations and the Guarantees of the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedsubordinated to the Obligations pursuant to the Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of Borrower Intermediate Holdings or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries any Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries any Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) Indebtedness of Intermediate Holdings or any Subsidiary supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratioincurred by Intermediate Holdings, on a Pro Forma Basis, is 2.00 to 1.00 any Borrower or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio DebtSubsidiary Loan Party; provided that (A) at the time of the incurrence of any such Indebtedness pursuant to clause (i) above (and after giving effect thereto), no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the aggregate outstanding amount of Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 3.75 to 1.00 and (ii) Permitted Refinancing Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionrespect thereof;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint venturesthat are not Loan Parties; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to outstanding under this clause (s) shall not exceedexceed the greater of $90.0 million and 10.0% of the consolidated assets of the Subsidiaries that are not Loan Parties, measured at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04incurrence;
(t) unsecured Indebtedness in respect of obligations of Intermediate Holdings or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of Intermediate Holdings or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of businessconnection with Permitted Receivables Financings;
(w) Indebtedness consisting of reimbursement obligations related Intermediate Holdings or any Subsidiary incurred (i) under cash management services (including, but not limited to, intraday, ACH and purchasing card/T&E services) and (ii) under lines of credit or overdraft facilities extended by one or more financial institutions reasonably acceptable to bank guarantees the Administrative Agent or by one or more of the Lenders and (in each case) established for the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Overdraft Line may be secured as, but only to the extent that such obligations are collateralized permitted by cash or cash equivalentsSection 6.02(b) and the Security Documents;
(x) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in excess, at any one time outstanding, of the greater of $225.0 million or 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(y) Indebtedness consisting of promissory notes issued by the Borrower Intermediate Holdings or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates estates, spouses or family members former spouses to finance the purchase or redemption of Equity Interests of the Borrower Intermediate Holdings or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations of Intermediate Holdings or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date Transactions or and Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(ccaa) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbz) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Indebtedness. IncurBe indebted for borrowed money, create the deferred purchase price of property, leases which would be capitalized in accordance with GAAP or assume any other Indebtedness; or become liable as a surety, guarantor, accommodation party or otherwise for or upon the obligation of any other Person, except:
(a) any Indebtedness listed incurred for the acquisition of supplies or inventory on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofnormal trade credit;
(b) Indebtedness created hereunder incurred pursuant to one or more transactions permitted under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessSection 6.4;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposesof Borrower under this Agreement;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Subordinated Debt;
(e) convertible Indebtedness owed of Borrower to (including obligations in respect its investors, provided that each investor’s right to repayment of letters such Indebtedness, the priority of credit or bank guarantees or similar instruments for any Lien securing the benefit of) any person providing workers’ compensationsame, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) and the rights of such investor to enforce remedies against Borrower following default have been made subordinate to the Borrower or any Liens of Lender and to the prior payment to Lender of the other Restricted Subsidiaries Obligations, on terms acceptable to Lender (Borrower acknowledges and agrees that Lender may require the foregoing subordination to be memorialized pursuant to reimbursement or indemnification obligations to such person, a written subordination agreement approved by Lender in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrenceits reasonable discretion);
(f) intercompany any Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing approved by any Restricted Subsidiary of the Borrower that is not a Loan Party Lender prior to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisionsClosing Date as shown on Schedule 6.1;
(g) Indebtedness consisting of reimbursement obligations arising in respect connection with corporate credit cards in an aggregate amount of 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 up to secure health, safety and environmental obligations in the ordinary course of business;$300,000; and
(ih) Indebtedness in respect the form of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed reimbursement obligations in connection with a Permitted Business Acquisitionletters of credit securing Borrower’s real property lease obligations in an amount (the “Cap”) not to exceed $1,015,000 outstanding at any time (inclusive of the Indebtedness described in Schedule 6.1); provided, in each casehowever, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) that the Borrower Cap automatically shall be able eliminated after the first to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater occur of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as the closing of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness SPAC Transaction with Stable Road Acquisition Corp. and (ii) the Remaining Present Value receipt by Borrower of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the gross cash proceeds of at least $50,000,000 from the offer and sale of Borrower’s equity securities in a single transaction or series of related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (transactions occurring from and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Loan and Security Agreement (Stable Road Acquisition Corp.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) Indebtedness existing on the Closing Date and (other than in the case of any Indebtedness listed existing letters of credit to be replaced with Letters of Credit issued hereunder) set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the U.S. Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the U.S. Borrower and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the U.S. Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (ie) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the U.S. Borrower or any other Subsidiary to the extent permitted by Section 6.04, provided that Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Term Administrative Agent;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 three Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a Person merged into or consolidated with the U.S. Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; , provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect theretoto, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), the aggregate outstanding amount paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), would not exceed the greater of (i) $100.0 U.S.$75.0 million and (ii) 7.06.00% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger or consolidation, such assumption or such incurrence, as applicable, for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that ;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the U.S. Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of such Indebtedness this Section 6.01, this paragraph (i) and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k6.03) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 U.S.$75.0 million and (ii) 9.06.00% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Capital Lease Obligations incurred by any Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness consisting of (i) Term Loan Obligations the U.S. Borrower or any Domestic Subsidiary, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessU.S.$125.0 million;
(nl) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as by any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the any Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iiiii) by any Borrower or any Subsidiary of Indebtedness otherwise expressly permitted hereunder of any Restricted Borrower or any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 6.04, (other than Section 6.04(t)); (iviii) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Party; provided that all Foreign Subsidiaries may guarantee obligations of other Foreign Subsidiaries under ordinary course cash management obligations, and (viv) by the U.S. Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(a), (k) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)r); provided that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(om) Indebtedness arising from agreements of any Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing such acquisition;
(n) Indebtedness in connection with Permitted Receivables Financings; provided that the proceeds thereof are applied in accordance with Section 2.11(c);
(o) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) issued for the account of the U.S. Borrower or any such Permitted Business AcquisitionSubsidiary, having an aggregate face amount not in excess of U.S.$50.0 million;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of Permitted Junior Debt, provided, that in the case of any senior secured second-lien Indebtedness, the liens securing such Indebtedness shall be subject to an intercreditor agreement on terms (i) consistent with senior secured second-lien transactions involving Affiliates of the financing Permitted Holders at the time of insurance premiums issuance of such second-lien Indebtedness or (ii) take to which the Term Administrative Agent has not objected after having been afforded a period of five Business Days to review such terms;
(r) Indebtedness of Foreign Subsidiaries (including letters of credit or pay obligations contained in supply arrangements, in each case, bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) for working capital purposes incurred in the ordinary course of business;
(r) business on ordinary business terms in an aggregate amount outstanding at any time not to exceed the sum of (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) U.S.$75.0 million and (ii) any Permitted Refinancing Indebtedness incurred 10% of the Backlog of all Foreign Subsidiaries of the U.S. Borrower as of the last day of the most recently ended calendar month for which the U.S. Borrower has delivered a certificate to Refinance such Ratio Debt; the Term Administrative Agent in accordance with Section 5.04(g), provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate Debt outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) any time, in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employeesaggregate, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) 95% of the Borrower or Backlog of any and all Foreign Subsidiaries of the other Restricted Subsidiaries (other than any such sale to Holdings or any U.S. Borrower as of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) last day of the most recently ended calendar month for which the U.S. Borrower or any of has delivered a certificate to the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves Term Administrative Agent in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity DateSection 5.04(g);
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Credit Agreement (Dresser Inc)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) Indebtedness of the Company or any Subsidiary existing on the Closing Date (provided that any such Indebtedness listed in excess of $10,000,000 shall be set forth on Schedule 6.01(a6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Company or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Company or any Subsidiary pursuant to Swap Agreements permitted by Section 6.10;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Company or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of the Company to any Subsidiary and of any Subsidiary to the Company or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiariesany other Subsidiary; provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party the Subsidiary Guarantor owing to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b6.04(a) and (ii) Indebtedness owing by of the Borrower or any other Subsidiary Loan Party Company to any Restricted Subsidiary and Indebtedness of the Subsidiary Guarantor to any Subsidiary that is not the Subsidiary Guarantor shall be made expressly subject to a Loan Party is subordinated note containing subordination provisions reasonably satisfactory to the Obligations pursuant to customary subordination provisionsCompany and the Administrative Agent;
(gi) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness and (ii) ordinary course Guarantees and any related credit support or suretyship arrangements so long as the same do not constitute Indebtedness for borrowed money or a Guarantee thereof;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received to the obligor by the Borrower such bank or other financial institution of its incurrence and (iiiii) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Company or any Subsidiary after the Closing Date and Indebtedness assumed or incurred or assumed in connection with a Permitted Business Acquisition; providedsuch acquisition, in each casemerger or consolidation and where such acquisition, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; permitted by this Agreement provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the aggregate amount of Indebtedness outstanding pursuant to this paragraph (h) and paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, permitted under Section 6.03 would not exceed (x) the greater of (i) $100.0 million [*] and (ii) 7.0[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger or consolidation, such assumption or such incurrence, as applicable for which Required Financial Statements financial statements have been delivered pursuant to Section 5.045.04 plus (y) an amount of Indebtedness for which, after giving effect to such issuance, incurrence or assumption, the Company would be in Ratio Compliance; provided, further (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) immediately after giving effect to such acquisition, merger or consolidation, the assumption and incurrence of any Indebtedness and any related transactions, the Company shall be in Pro Forma Compliance and (C) to the extent such Indebtedness is incurred in contemplation of such acquisition, merger or consolidation, it shall constitute Permitted Additional Debt; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that .
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Company or any Subsidiary prior to or within 270 [*] days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof, of such Indebtedness (together with the aggregate principal amount of Indebtedness outstanding pursuant to this paragraph (i) and paragraph (iih) of this Section 6.01 and the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments would not exceed (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect theretox) the greater of (i) $150.0 million [*] and (ii) 9.0[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04 plus (y) any additional amounts, so long as after giving effect to the issuance or incurrence of such Indebtedness the Company is in Ratio Compliance;
(j) Capital Lease Obligations incurred by the Company or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness of the Company or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(ml) Indebtedness consisting of the Company pursuant to (i) Term Loan Obligations the Senior Unsecured Notes Documents in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt[*], in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Guarantor of the Indebtedness of the Borrower Company described in clause paragraph (ml) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable6.01, (ii) by the Borrower or the Subsidiary Guarantor of any Indebtedness of the Borrower or any other Subsidiary Loan Party Guarantor permitted to be incurred under this Agreement, (iii) by the Borrower or the Subsidiary Guarantor of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a the Subsidiary Loan Party Guarantor to the extent such Guarantees are permitted by Section Section 6.04 (other than Section 6.04(tSection 6.04(v)); , (iv) by any Restricted Subsidiary that is not a the Subsidiary Guarantor of any Indebtedness of any other Subsidiary or any Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t))this Agreement; provided that Guarantees by Borrower or any other Loan Party or Subsidiary under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(on) Indebtedness arising from agreements of Borrower the Company or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit[reserved];
(q) Indebtedness consisting of (i) the financing of insurance premiums premiums, or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) Indebtedness consisting of Permitted Ratio Debt and Permitted Refinancing Indebtedness in respect thereof so long as (i) so long as no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom, and (ii) (A) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Loan-to-Value Ratio on a Pro Forma Basis is equal to or less than [*] to 1.0, or (B) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Fixed Charge Coverage Ratio, Ratio on a Pro Forma Basis, is 2.00 Basis at least [*] to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million1.0;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that are not the Subsidiary Guarantor in an aggregate outstanding principal amount of Indebtedness incurred pursuant not to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $45.0 million [*] and (ii) 2.50[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations of the Company or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Company or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business[reserved];
(w) Indebtedness consisting of reimbursement obligations any New Vessel Subsidiary under a New Vessel Financing (in an initial aggregate principal amount not to exceed [*]% of the purchase price (as adjusted from time to time to give effect to any change orders or other modifications) of the purchased Vessel and [*]% of any related to bank guarantees to export credit insurance premium) and Guarantees thereof by the extent that such obligations are collateralized by cash or cash equivalentsCompany;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower Company and the Subsidiaries incurred under lines of credit or any Parent Entity permitted overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the Administrative Agent or one or more of the Lenders and (in each case) established for the Company’s and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.066.02(a) and in the Security Documents (it being understood, however, that for a period of 30 consecutive days during each fiscal year of the Company the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed the greater of $[*] and [*]% of Consolidated Total Assets);
(y) Guarantees by the Borrower or intercompany Indebtedness in connection with any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of businessPermitted Vessel Transfer;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder[reserved];
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date[reserved];
(bb) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in respect excess of Senior Unsecured Notes the greater of $[*] and any Permitted Refinancing Indebtedness in respect thereof; and[*]% of Consolidated Total Assets as of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04;
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bb) of this Section 6.01above. For purposes of determining compliance with this Section 6.01, (x) the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date that such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing and (y) (A) Indebtedness need not be permitted solely by reference to one category of Permitted permitted Indebtedness (or any portion thereof) described in Section Sections 6.01(a) through Section 6.01(cc(cc) but may be permitted in part under any combination thereof and thereof, (B) in the event that an item of Indebtedness (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category one or more of Permitted the categories of permitted Indebtedness (or any portion thereof) described in Section 6.01 (other than Sections 6.01(a), ) through (b), (m) or (bb)cc), the Borrower Company may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later time), such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 and at the time of incurrence, division, classification or reclassification will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such other clauseclause or clauses (or any portion thereof); provided, that all Indebtedness under this Agreement that is outstanding on the Closing Date shall at all times be deemed to have been incurred pursuant to clause (b) of this Section 6.01 and (C) in connection with (1) the incurrence of revolving Indebtedness under this Section 6.01 or (2) any commitment relating to the incurrence of Indebtedness under this Section 6.01 and the granting of any Lien to secure such Indebtedness, the Company or applicable Subsidiary may designate the incurrence of such Indebtedness and the granting of such Lien therefor as having occurred on the date of first incurrence of such revolving loan Indebtedness or commitment (such date, the “Deemed Date”), and from and after the Deemed Date such Indebtedness shall be deemed to be outstanding for purposes of this Section 6.01 and 6.02 so long as the commitments with respect to such Indebtedness remain in effect and any related subsequent actual incurrence and the granting of such Lien therefor will be deemed for purposes of this Section 6.01 and Section 6.02 of this Agreement to have been incurred or granted on such Deemed Date. With respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) created hereunder and any Permitted Refinancing Indebtedness in respect thereofunder the other Loan Documents;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness[Reserved];
(c) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.12 and in respect of Secured Bilateral Letters of Credit in an amount not to exceed the Maximum Shared Amount;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any Restricted Subsidiary of the other Restricted Subsidiaries Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of businessPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 thirty (30) days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary owing to the Borrower or any Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is extent permitted under by Section 6.04(b) and (ii) 6.04; provided that Indebtedness owing by the Borrower or of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five (5) Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in purchase cards is extinguished within sixty (60) days from the ordinary course of businessdue date thereof;
(i) Indebtedness incurred of a Restricted Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Restricted Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger, amalgamation or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger, amalgamation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect thereto)to, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r)such acquisition, in each casemerger, by Restricted Subsidiaries that are not Guarantors does amalgamation or consolidation, such assumption or such incurrence, as applicable, would not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 U.S.$60.0 million and (ii) 7.02% of Consolidated Total Net Tangible Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that Borrower;
(i) such Indebtedness shall be Capital Lease Obligations incurred by the Borrower or any Restricted Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness respective asset permitted under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (Agreement in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members order to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any such acquisition, lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund chargesimprovement, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof would not exceed the greater of (i) U.S.$60.0 million and (ii) 2% of Consolidated Net Tangible Assets of the Borrower;
(ccj) all premium Mortgage financings and purchase money Indebtedness incurred by the Borrower or any Restricted Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof would not exceed the greater of (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (ai) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof U.S.$60.0 million and (Bii) in 2% of Consolidated Net Tangible Assets of the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.Borrower;
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
Indebtedness. IncurThe Company will not, create nor will it permit any ------------ Subsidiary to, create, incur or assume suffer to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such IndebtednessThe Loans, Reimbursement Obligations, ESOP Loans, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, under the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Loan Documents and Permitted Subordinated Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;.
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing existing on or about the date hereof and described in Schedule 6.18 hereto. -------------
(iii) Indebtedness arising under Rate Hedging Obligations permitted by Section 6.22. ------------
(iv) Indebtedness of Tokheim Sofitam or a Borrowing Subsidiary to the Company arising from loans made on or about the Effective Date by the Borrower Company to such Subsidiary on terms and with interest rates reasonably acceptable to the Agent and evidenced by notes pledged to the Agent to secure the Secured Obligations.
(v) Indebtedness of any Subsidiary to the Company or Tokheim Sofitam or any other Subsidiary Loan Party Borrower pursuant to management agreements or other similar agreements acceptable to the Agent.
(vi) Indebtedness of the Company to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, loans made by any such Subsidiary to the Company.
(1vii) no Event Indebtedness of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition any of the Borrowers or would result immediately after giving pro forma effect Guarantor Subsidiaries to such Permitted Business Acquisition and any related transactions, (2) of the Borrower shall be able Borrowers or Guarantor Subsidiaries evidenced by loan agreements or notes pledged to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed Agent to secure the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such IndebtednessObligations; provided that at the time Non-Domestic Borrowing Subsidiaries -------- shall pledge the notes to secure the Secured Obligations of the incurrence or assumption Non-Domestic Borrowing Subsidiaries.
(viii) Indebtedness of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are neither Borrowers nor Guarantor Subsidiaries not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or otherwise permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount foregoing clauses of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; this Section provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of all such Indebtedness does not at any time exceed $20,000,000.
(and after giving effect theretoix) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered Indebtedness secured by Liens permitted pursuant to Section 5.04;
------- 6.10(iii), (miv) and (v), Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount connection with overdraft --------- ---- --- facilities and other Indebtedness not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case otherwise permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) clauses of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of for all such Indebtedness (and after giving effect theretodescribed in this Section 6.18(ix) the greater of (i) does not at any time exceed $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;15,000,000. ----------------
(x) Indebtedness consisting of promissory notes issued by any Subsidiary in connection with sales made to such Subsidiary on normal trade terms.
(xi) Indebtedness in connection with sales, assignments or discounting of "traites" or trade receivables or invoices to the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity extent permitted by Section 6.06;6.9. -----------
(yxii) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in with respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (ato Indebtedness permitted pursuant to Sections 6.18(i) through (bb) of this Section 6.01xi). For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.---------------- ----
Appears in 1 contract
Sources: Credit Agreement (Tokheim Corp)
Indebtedness. Incur, create create, assume or assume permit to exist any IndebtednessIndebtedness (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and its subsidiaries), except:
(a) any (i) Indebtedness listed (other than under letters of credit) existing on the Original Effective Date and set forth on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect incurred to Refinance such Indebtedness and (ii) Indebtedness under letters of credit existing on the Original Effective Date and set forth on Schedule 6.01(b), without giving effect to any extension, renewal or replacement thereof;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of Holdings and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.11;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Holdings or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of any Borrower to any Subsidiary or among the other Borrower and the Restricted Subsidiaries of any Subsidiary to Holdings or between and among Restricted Subsidiaries; any Borrower or any other Subsidiary, provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Domestic Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by (the Borrower or “Subordinated Intercompany Debt”) of any other Subsidiary Specified Loan Party to any Restricted Subsidiary that is not a Loan Party is (unless such Indebtedness shall have been pledged in favor of the Collateral Agent by the payee Subsidiary) shall be subordinated to the Obligations pursuant to customary in the manner set forth in Exhibit F (it being agreed that such subordination provisionsprovisions will not restrict the repayment of any such Subordinated Intercompany Debt other than when an Event of Default exists);
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees guarantees, documentary letters of credit and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 three Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred credit or purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made cards is extinguished within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreementsfrom its incurrence;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Amendment Agreement (Celanese Corp)
Indebtedness. IncurThe Borrower will not, create or assume and will not permit any of the Restricted Subsidiaries to Incur any Indebtedness, except:
(a) (i) Indebtedness arising under the Loan Documents, including pursuant to Sections 2.20 and 2.21, and (ii) (A) any Credit Agreement Refinancing Indebtedness listed on Schedule 6.01(aIncurred to Refinance (in whole or in part) such Indebtedness and (B) any Permitted Refinancing Indebtedness to Refinance (in respect thereofwhole or in part) any such Credit Agreement Refinancing Indebtedness;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness[reserved];
(ci) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letters of credit or bank guarantees credit, warehouse receipt or similar instruments for facilities entered into in the benefit of) any person providing workers’ compensationordinary course of business (including in respect of workers compensation claims, or consistent with past practice, health, disability or other employee benefits or property, casualty or liability insurance (including or self-insurance) to the Borrower insurance or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement reimbursement-type obligations regarding workers’ workers compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between health, disability or among the Borrower and the Restricted Subsidiaries other employee benefits or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower property, casualty or another Subsidiary Loan Party is permitted under Section 6.04(bliability insurance or self-insurance) and (ii) Indebtedness owing supported by Letters of Credit or other letters of credit under similar facilities in an amount not to exceed the Stated Amount of such Letters of Credit or stated amount of such other letters of credit under such similar facilities;
(d) Except as otherwise limited by clauses (a), (h) and (u), Guarantees Incurred by (i) any Restricted Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiary Loan Party that is permitted to be Incurred under this Agreement and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiary that is not a Loan Party permitted to be Incurred under this Agreement; provided that, if the applicable Indebtedness is subordinated to the Secured Obligations, any such Guarantees shall be subordinated to the Secured Obligations;
(e) Guarantees Incurred in the ordinary course of business or consistent with past practice in respect of obligations to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners;
(i) Indebtedness (including Financing Lease Obligations and other Indebtedness arising under mortgage financings and purchase money Indebtedness) the proceeds of which are used to finance the acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of fixed or capital assets or otherwise Incurred in respect of Capital Expenditures and other Financing Lease Obligations; provided that (A) such Indebtedness is Incurred concurrently with or within 365 days after the date of substantial completion of the applicable acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement or the making of the applicable Capital Expenditure and (B) such Indebtedness is not Incurred to acquire Equity Interests of any Person; provided, further, that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to customary subordination provisionsthis clause (f)(i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (f)(ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to the greater of (x) $95,000,000 and (y) 33% of Consolidated EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section 5.01 Financials most recently delivered on or prior to such date); and
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance Indebtedness incurred pursuant to clause (i) above;
(g) [reserved];
(h) Indebtedness outstanding as of the Effective Date and any Permitted Refinancing Indebtedness Incurred to Refinance (in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, whole or in each case, provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of businesspart) such Indebtedness;
(i) Indebtedness in respect of Cash Management Services Swap Agreements Incurred in the ordinary course of businessbusiness or consistent with past practice and, (ii) other Indebtedness arising from in each case, at the honoring by a bank or other financial institution of a checktime entered into, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of businessnot for speculative purposes;
(i) Indebtedness incurred of a Person or assumed Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger, consolidation or amalgamation with such Person or any of its Subsidiaries) or Indebtedness attaching to assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Effective Date as the result of an Acquisition or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Restricted Subsidiary; provided that;
(A) subject to Section 1.10, before and after giving pro forma effect thereto, no Event of Default under Section 7.01(a), (b), (h) or (i) has occurred and is continuing;
(B) as of the date that any such Person becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger, consolidation or amalgamation with such a Person or any of its Subsidiaries) or the date that any such assets are acquired by the Borrower or any Restricted Subsidiary and after giving pro forma effect thereto, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 6.01(j) does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of
(I) the Incremental Base Amount plus
(II) subject to Section 1.10, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness and to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis with
(1) with respect to any such Indebtedness constituting First Lien Obligations, a Permitted Business Consolidated First ▇▇▇▇ ▇▇▇▇▇ Leverage Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition; provided, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period, (x) of not greater than 3.50:1.00 or (y) not greater than the Consolidated First ▇▇▇▇ ▇▇▇▇▇ Leverage Ratio prior to giving effect to such Incurrence, Acquisition, Investment, Specified Transaction and/or Specified Restructuring,
(2) with respect to any such Indebtedness constituting Consolidated Debt that is secured by a Lien on the Collateral but does not constitute First Lien Obligations, a Consolidated Secured Gross Leverage Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period, (x) of not greater than 4.50:1.00 or (y) not greater than the Consolidated Secured Gross Leverage Ratio prior to giving effect to such Incurrence, Acquisition, Investment, Specified Transaction and/or Specified Restructuring or
(3) with respect to any Indebtedness not of the type described in subclauses (1) and (2) above, a Consolidated Total Gross Leverage Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period, (x) of not greater than 5.00:1.00 or (y) not greater than the Consolidated Total Gross Leverage Ratio prior to giving effect to such Incurrence, Acquisition, Investment, Specified Transaction and/or Specified Restructuring;
(C) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof;
(1D) no Event subject to Section 1.11(g), such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary or is the survivor of Default a merger with such Person or any of its Subsidiaries) (except, for the avoidance of doubt, to the extent permitted by dollar for dollar usage of any other basket set forth in Section 6.01); and
(E) (x) the Equity Interests of such Person is pledged to the collateral agent to the extent required under Section 5.10 and Section 5.11 and (y) such Person executes a supplement to each applicable Security Document (or alternative guarantee and security arrangements in relation to the Secured Obligations) and a counterpart signature page to the Intercompany Note, in each case to the extent required under Section 5.10 or Section 5.11, as applicable; provided that the requirements of this clause (E) shall not apply to any Indebtedness of the type that could have occurred been Incurred under Section 6.01(f);
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness; provided, that the at the time of Incurrence thereof and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition Incurrence and any related transactionsother transactions occurring in connection therewith and use of proceeds thereof, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted such Indebtedness so Incurred under this Section 6.01(j) by Non-Guarantors does not exceed the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;then-available Non-Guarantor Cap.
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party Incurred to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t))finance an Acquisition; provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;that,
(oA) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnificationsubject to Section 1.10, contributionbefore and after giving pro forma effect thereto, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a7.01(a), (b), (mh) or (bbi) meets has occurred and is continuing;
(B) as of the criteria date of another category such Incurrence and after giving pro forma effect thereto, and the use of Permitted the proceeds thereof, the aggregate principal amount of Indebtedness described in then outstanding pursuant to this Section 6.01 (other than Sections 6.01(a6.01(k), does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of
(b)I) the Incremental Base Amount plus
(II) subject to Section 1.10, (m) an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness and to such Acquisition, Investment, any Specified Transaction or (bb))Specified Restructuring to be consummated in connection therewith, the Borrower mayand the Restricted Subsidiaries shall be in compliance on a pro forma basis with
(1) with respect to any such Indebtedness constituting First Lien Obligations, a Consolidated First ▇▇▇▇ ▇▇▇▇▇ Leverage Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period (x) of not greater than 3.50:1.00 or (y) not greater than the Consolidated First ▇▇▇▇ ▇▇▇▇▇ Leverage Ratio prior to giving effect to such Incurrence, Acquisition, Investment, Specified Transaction and/or Specified Restructuring,
(2) with respect to any such Indebtedness secured by a Lien on the Collateral that does not constitute First Lien Obligations, a Consolidated Secured Gross Leverage Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period (x) of not greater than 4.50:1.00 or (y) not greater than the Consolidated Secured Gross Leverage Ratio prior to giving effect to such Incurrence, Acquisition, Investment, Specified Transaction and/or Specified Restructuring or
(3) with respect to any Indebtedness not of the type described in its sole discretionsubclauses (1) and (2) above, reclassify a Consolidated Total Gross Leverage Ratio, as such item ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of (x) not greater than 5.00:1.00 or (y) not greater than the Consolidated Total Gross Leverage Ratio prior to giving effect to such Incurrence, Acquisition, Investment, Specified Transaction and/or Specified Restructuring (C) (x) the terms of such Indebtedness do not provide for any scheduled repayment (including at maturity), mandatory repayment, redemption, repurchase, defeasance, acquisition, similar payment or sinking fund obligation prior to the Latest Maturity Date, other than customary prepayments, repurchases, redemptions, defeasances or similar payments of, or offers to prepay, redeem, repurchase, defease, acquire or similarly pay upon, a change of control, asset sale event or casualty, eminent domain or condemnation event or on account of the accumulation of excess cash flow and customary acceleration rights upon an event of default or (y) such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.constitute Permitted Term Loan A Indebtedness;
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any IndebtednessIndebtedness (other than intercompany Indebtedness incurred in the ordinary course of business and consistent with past practices of Borrower and the Subsidiaries), except:
(a) any (i) Indebtedness listed (other than under letters of credit) existing on the Closing Date and set forth on Schedule 6.01(a7.01(a) and any Permitted Refinancing Indebtedness in respect incurred to Refinance such Indebtedness and (ii) Indebtedness under letters of credit existing on the Closing Date and set forth on Schedule 7.01(b), without giving effect to any extension, renewal or replacement thereof;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes[reserved];
(d) (i) so long as no Default or Event Indebtedness of Default has occurred Borrower and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens Subsidiaries pursuant to Swap Agreements permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt7.09;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of businessPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between of Borrower to any Subsidiary or among the Borrower Barrington Guarantors and of any Subsidiary to Borrower, the Restricted Subsidiaries Barrington Guarantors or between and among Restricted Subsidiariesany other Subsidiary; provided that such Indebtedness (ithe “Subordinated Intercompany Debt”) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is shall be subordinated to the Obligations pursuant to customary in the manner set forth in Exhibit I (it being agreed that such subordination provisionsprovisions will not restrict the repayment of any such Subordinated Intercompany Debt other than when an Event of Default exists);
(g) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ih) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 three Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million[reserved];
(j) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness respective asset permitted under this clause (j) Agreement in order to finance such acquisition or permitted Sale improvement, and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof are permanently reduced by the amount of such prepayments)would not exceed $150,000;
(k) [Reserved]Indebtedness arising from agreements of Borrower or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the Transactions or other acquisitions or dispositions permitted under this Agreement, 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;
(l) other unsecured Indebtedness; provided that the aggregate outstanding Indebtedness supported by a Letter of Credit, in a principal amount not in excess of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence stated amount of such Indebtedness (and after giving effect thereto) the greater Letter of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04Credit;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (Bx) the aggregate principal amount financing of any Incremental Term Loans insurance premiums or Incremental Equivalent Term Debt(y) take or pay or similar obligations contained in supply arrangements, in each case permitted by in the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any ordinary course of the foregoing Indebtednessbusiness;
(n) Guarantees Capital Lease Obligations incurred by Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 7.03;
(o) [reserved];
(p) cash management obligations and Indebtedness incurred by Borrower or any Subsidiary Guarantor in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management and deposit accounts;
(q) [reserved];
(r) Indebtedness incurred by Borrower or any Subsidiary Guarantor representing deferred compensation to employees of Borrower or any Subsidiary Guarantor incurred in the ordinary course of business;
(s) guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the by Borrower or any Subsidiary Guarantor of any other Indebtedness of Borrower or any Subsidiary Loan Party Guarantor expressly permitted to be incurred under this Agreement, Agreement and (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (ivii) by any Restricted Subsidiary that is not a Loan Party Borrower of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)7.01(a); provided that Guarantees guarantees by Borrower or any other Loan Party Subsidiary Guarantor under this clause (nSection 7.01(s) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations to at least the same extent as such underlying the Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofbeing guaranteed; and
(cct) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Indebtedness. IncurThe Loan Parties will not, create and will not permit any of their Subsidiaries to, directly or indirectly, at any time create, incur, assume or suffer to exist any Indebtedness, exceptIndebtedness other than:
(ai) Indebtedness under the Loan Documents, including any Indebtedness listed created pursuant to the Incremental Revolving Credit Commitments;
(ii) Indebtedness existing on the Original Closing Date and set forth in Schedule 6.01(a) 8.1(ii), and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(ciii) Indebtedness pursuant (including Capitalized Lease Obligations and purchase money Indebtedness) to Hedge Agreements finance all or any part of the purchase, lease, construction, installment, repair or improvement of property, plant or equipment or other than for speculative purposesfixed or capital assets, in an aggregate principal amount not to exceed $2,000,000 at any time outstanding, and any Refinancing Indebtedness in respect of such Indebtedness; provided that such Indebtedness is incurred within 180 days after the purchase, lease, construction, installation, repair or improvement of the property that is the subject of such Indebtedness;
(div) subject to the requirements set forth in the definitions thereof, (iA) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Term Loan Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (iiB) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtthe Real Property Indebtedness;
(ev) Permitted Hedging Agreements and Bank Product Obligations;
(vi) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees Guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits (whether to current or former employees) or property, casualty or liability insurance (including or self-insurance in respect of such items, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that that, upon the incurrence of any Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 sixty (60) days following such incurrence;
(fvii) Indebtedness arising from agreements of any Borrower or any Subsidiary providing for indemnification, earn-outs, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with any Permitted Acquisition or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Acquisition; provided, that the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrowers and their Subsidiaries in connection with such disposition;
(viii) intercompany Indebtedness between or among the Borrower Borrowers and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) such Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is only entered into in connection with Investments permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated 8.11 and, to the Obligations pursuant extent such Indebtedness is in an aggregate principal amount exceeding $1,500,000, is subject to customary subordination provisionsan Intercompany Subordination Agreement;
(gix) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(nx) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing Borrowers or the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party Subsidiaries permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees (A) such guarantees are not prohibited by Borrower or the provisions of Section 8.11; (B) no such Guarantee by any other Loan Party under this clause (n) Subsidiary of any Term Loan Indebtedness shall be permitted unless such Subsidiary shall have also provided a Guarantee of a person that the Obligations, and (C) if the Indebtedness being Guaranteed is subordinated to other Indebtedness of the Obligations, such person Guarantee shall be expressly subordinated to the Guarantee of the Obligations to on terms at least as favorable to the same extent Lenders as those contained in the subordination of such underlying Indebtedness is subordinatedIndebtedness;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(pxi) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(qxii) Acquired Indebtedness in an amount not to exceed $5,000,000 at any one time;
(xiii) Subordinated Debt, if any, subject to the terms set forth in the Subordination Agreement corresponding thereto; and
(xiv) Indebtedness consisting incurred in the ordinary course of business in respect of (iA) overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements, and in connection with securities and commodities arising in connection with the acquisition or disposition of Permitted Investments and not any obligation in connection with margin financing, (B) any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities, (C) the endorsement of instruments for deposit or the financing of insurance premiums, (D) deferred compensation or similar arrangements to the employees of the Borrowers or any of its Subsidiaries, (E) obligations to pay insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) agreements and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (iF) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf ofowed to any Person providing property, casualty, business interruption or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant liability insurance to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted its Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after shall not be in excess of the Maturity Date;
(bb) Indebtedness in respect amount of Senior Unsecured Notes the unpaid cost of, and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all shall be incurred only to defer the cost of the annual premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01for such insurance. For purposes of determining compliance with this Section 6.018.1, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category more than one of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb))the above-listed clauses, the Borrower Borrowers may, in its their sole discretion, reclassify at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant. Accrual of interest, the accretion of accreted value, amortization of original issue discount, the payment of interest or dividends in the form of additional Indebtedness with the same terms (including pay-in-kind interest), and such item increases in the amount of Indebtedness shall outstanding solely as a result of fluctuations in the exchange rate of currencies, will not be treated deemed to be an incurrence of Indebtedness for purposes of this Section 8.1. Guarantees of, or obligations in respect of letters of credit relating to Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness will not be included in the determination of such amount of Indebtedness; provided that, the incurrence of the Indebtedness represented by such Guarantee or letter of credit, as having been incurred or existing pursuant to such other clausethe case may be, was in compliance with this Section 8.1.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any IndebtednessIndebtedness (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and its subsidiaries), except:
(a) any (i) Indebtedness listed (other than under letters of credit) existing on the Effective Date and set forth on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect incurred to Refinance such Indebtedness and (ii) Indebtedness under letters of credit existing on the Effective Date and set forth on Schedule 6.01(b), without giving effect to any extension, renewal or replacement thereof;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of Holdings and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.11;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Holdings or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of any Borrower to any Subsidiary or among the other Borrower and the Restricted Subsidiaries of any Subsidiary to any Borrower or between and among Restricted Subsidiaries; any other Subsidiary, provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Domestic Subsidiary Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by (the Borrower or “Subordinated Intercompany Debt”) of any other Subsidiary Specified Loan Party to any Restricted Subsidiary that is not a Loan Party is (unless such Indebtedness shall have been pledged in favor of the Collateral Agent by the payee Subsidiary) shall be subordinated to the Obligations pursuant to customary in the manner set forth in Exhibit F (it being agreed that such subordination provisionsprovisions will not restrict the repayment of any such Subordinated Intercompany Debt other than when an Event of Default exists);
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished ex- tinguished within 10 three Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred credit or purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made cards is extinguished within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreementsfrom its incurrence;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Credit Agreement (Celanese CORP)
Indebtedness. IncurCreate, create incur, assume or assume suffer to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) of the Company in connection with the Letters of Credit and any Permitted Refinancing Indebtedness in respect thereofthis Agreement;
(b) (i) Indebtedness created hereunder of (i) the Company to any Subsidiary and (ii) any Subsidiary to the Company or any other Subsidiary to the extent the Indebtedness referred to in this clause 13.2(b)(ii) evidences a loan or advance permitted under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtednesssubsection 13.7;
(c) Indebtedness pursuant of Intermediate Holding evidenced by the Intermediate Holding Subordinated Intercompany Note and any Indebtedness in respect of other notes issued after the Closing Date evidencing additional loans made by HoldCo to Hedge Agreements other than for speculative purposesIntermediate Holding as contemplated by subsection 13.7(p); Indebtedness of the Company evidenced by the Company Subordinated Intercompany Note and any Indebtedness in respect of notes issued after the Closing Date evidencing additional loans made by Intermediate Holding to the Company as contemplated by subsection 13.7(p);
(d) (i) so long as no Default or Event Indebtedness in respect of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens derivatives contracts permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debtsubsection 13.11;
(e) Indebtedness owed to (including consisting of reimbursement obligations in respect of under surety, indemnity, performance, release and appeal bonds and guarantees thereof and letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, required in the ordinary course of business; provided that upon business or in connection with the incurrence enforcement of Indebtedness rights or 77 claims of the Company or its Subsidiaries, in each case to the extent a Letter of Credit supports in whole or in part the obligations of the Company and its Subsidiaries with respect to reimbursement obligations regarding workers’ compensation claimssuch bonds, such obligations shall be reimbursed not later than 30 days following such incurrenceguarantees and letters of credit;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary in respect of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) Permitted Subordinated Notes and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to portion of the Existing Exchange Debentures but only if such Existing Exchange Debentures are covenant defeased; and Indebtedness in respect of the Permitted Subordinated Notes and any Restricted Subsidiary that is not a Loan Party is subordinated to other portion of the Obligations pursuant to customary subordination provisionsExisting Subordinated Notes but only if such Existing Subordinated Notes are covenant defeased;
(g) Indebtedness owed to a seller in a Permitted Acquisition or a Permitted Joint Venture or to a buyer in a disposition permitted under clauses (e), (f) or (h) of subsection 13.6 that (i) relates to customary post-closing adjustments with respect to accounts receivable, accounts payable, net worth and/or similar items typically subject to post-closing adjustments in similar transactions, and are outstanding for a period of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, two (2) years or less following the creation thereof or (ii) relates to indemnities granted to the seller or buyer in each case, provided the transaction;
(h) other Indebtedness of the Company or any of its Subsidiaries incurred in the ordinary course of business, including those incurred their respective businesses in an aggregate principal amount not to secure health, safety and environmental obligations in the ordinary course of businessexceed $40,000,000 at any time;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received HoldCo evidenced by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of businessSubordinated HoldCo Debentures;
(ij) existing Indebtedness of the Company or any of its Subsidiaries listed on Schedule 13.2 hereto (as such Schedule may be updated on the Closing Date in accordance with subsection 16.1) including any extension or renewals or refinancing thereof, provided the principal amount thereof is not increased; and
(k) Indebtedness incurred on any date of the Company or any of its Subsidiaries assumed or issued in connection with a Permitted Business Acquisition; providedAcquisition (or, in each casethe case of any Permitted Acquisition involving the purchase of capital stock or other equity interests in any Person, (1) no Event Indebtedness of Default shall have occurred and be continuing immediately before such Person remaining outstanding after such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition Acquisition) and any related transactionsextension or renewal thereof, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided PROVIDED that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause50,000,000.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of a Borrower or any Subsidiary pursuant to Swap Agreements not entered into for speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the a Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) Indebtedness of a Borrower to any Subsidiary and of any Subsidiary to a Borrower or any other Subsidiary; provided, that other than in the case of intercompany Indebtedness between or among current liabilities incurred in the Borrower ordinary course of business in connection with the cash management, tax and accounting operations of the Borrowers and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that , (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to a Borrower or any Subsidiary Loan Parties shall be subject to Section 6.04(b) or (ee) and (ii) Indebtedness owing by the of a Borrower to any Subsidiary and Indebtedness of a Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the connection with the Development or in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessobligations;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with a Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets (other than the Contributed Assets), which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger, consolidation or amalgamation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger, consolidation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed amalgamation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the time assumption and incurrence of any Indebtedness and any related transactions, the Borrowers shall be in Pro Forma Compliance;
(i) (i) Capital Lease Obligations, mortgage financings and other purchase money Indebtedness incurred by a Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) after giving effect to the issuance, incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)such Indebtedness, the Borrowers shall be in Pro Forma Compliance, and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided that the aggregate outstanding principal amount of Indebtedness incurred under outstanding pursuant to this Section 6.01(i) together with shall not, at any amounts incurred under Section 6.01(r)time prior to the Commencement of Operations of the Development, in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 50 million;
(j) Capital Lease Obligations, Indebtedness Obligations incurred with by a Borrower or any Subsidiary in respect to installations, repairs, improvement of any Sale and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Lease-Back Transaction that is permitted under Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) [Reserved]other Indebtedness in an aggregate principal amount outstanding not to exceed $30 million;
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date extent constituting Indebtedness, agreements to pay service fees to professionals (including architects, engineers and designers) in furtherance of and/or in connection with the Development, in each case to the extent such incurrence agreements and related payment provisions are reasonably consistent with commonly accepted industry practices (provided, that no such agreements shall give rise to Indebtedness for which Required Financial Statements have been delivered pursuant to Section 5.04borrowed money);
(m) Indebtedness consisting after the Commencement of Operations of the Development, (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted Guarantees by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the a Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Subsidiary Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the a Borrower or any other Subsidiary Loan Party permitted to be incurred under this AgreementAgreement (subject to the proviso at the end of this Section 6.01(m)), (iiiii) by a Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , and (iviii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party; provided, that Guarantees by a Borrower or any Subsidiary Loan Party and (vunder this Section 6.01(m) shall be permitted prior to the Commencement of Indebtedness Operations of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) Development to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by of Indebtedness of a Borrower or any other Subsidiary Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly or are subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinatedObligations;
(on) Indebtedness arising from agreements of a Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) after the Commencement of Operations of the Development, (i) other Indebtedness so long as (A) no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Senior Secured Leverage Ratio on a Pro Forma Basis, is 2.00 Basis shall not be greater than 4.0 to 1.00 or greater (“Ratio Debt”) 1.0 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debtin respect thereof; provided provided, however, that at the time Indebtedness of the incurrence of any Indebtedness Subsidiaries that are not Subsidiary Loan Parties that is outstanding pursuant to clause (ir)(i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with shall not at any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not time exceed $50.0 million10 million in the aggregate;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04[reserved];
(t) unsecured Indebtedness in respect of obligations of a Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 90 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of a Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business[reserved];
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrowers and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent that Administrative Agent or by one or more of the Lenders or their Affiliates and (in each case) established for the Borrowers’ and the Subsidiaries’ ordinary course of operations (such obligations are collateralized by cash or cash equivalentsIndebtedness, the “Overdraft Line”), which Indebtedness may be secured under the Security Documents;
(x) Indebtedness consisting incurred on behalf of promissory notes issued by (or, after the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption Commencement of Equity Interests Operations of the Borrower or Development, representing Guarantees of Indebtedness thereof) joint ventures not in excess, at any Parent Entity one time outstanding, of $5.0 million; provided that the Guarantees of such Indebtedness shall be permitted by Section 6.06to the extent such Guarantees are subordinated to the Obligations pursuant to an intercreditor agreement reasonably satisfactory to the Administrative Agent;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations of a Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date Transactions or and Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(ccz) all premium (if any, including tender premiums), expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bby) above. For purposes of determining compliance with this Section 6.01, the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date that such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted permitted Indebtedness described in Section Sections 6.01(a) through Section 6.01(cc(z) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category one or more of Permitted the categories of permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), ) through (b), (m) or (bb)z), the Borrower mayBorrowers shall, in its their sole discretion, reclassify classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 and will only be required to include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses and such item of Indebtedness shall be treated as having been incurred or existing pursuant to only one of such other clauseclauses. In addition, with respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) (i) Indebtedness existing on the Closing Date (provided that any Indebtedness listed that is in excess of $25.0 million individually or $100.0 million in the aggregate shall only be permitted under this clause (a)(i) to the extent such Indebtedness is set forth on Schedule 6.01(a6.01 to the 2008 Credit Agreement) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary), (ii) intercompany Indebtedness existing on the Closing Date; provided that any Indebtedness of the Borrower or a Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (iii) the Retained Notes and any Permitted Refinancing Indebtedness incurred to Refinance the Retained Notes;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements not entered into for speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that other than in the case of intercompany Indebtedness between or among current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that , (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party owing to the Borrower or another any Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) or (ff) and (ii) Indebtedness owing by of the Borrower to any Subsidiary and Indebtedness of the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets (including, in each case, (1) no Event in connection with the acquisition of Default shall have occurred Subsidiaries and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect assets pursuant to such Permitted Business Acquisition and any related transactionsthe Post-Closing CMBS Transaction), (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such which Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each casecase exists at the time of such acquisition, on a Pro Forma Basis immediately after giving effect to merger, consolidation or amalgamation and is not created in contemplation of such incurrence event and where such acquisition, merger, consolidation or assumption of Indebtedness amalgamation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the time assumption and incurrence of any Indebtedness and any related transactions, the Borrower shall be in Pro Forma Compliance;
(i) Capital Lease Obligations, mortgage financings and other purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) after giving effect to the issuance, incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)such Indebtedness, the aggregate outstanding amount of Borrower shall be in Pro Forma Compliance, and (ii) any Permitted Refinancing Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionrespect thereof;
(j) Capital Lease Obligations, Indebtedness Obligations incurred with by the Borrower or any Subsidiary in respect to installations, repairs, improvement of any Sale and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Lease-Back Transaction that is permitted under Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) [Reserved];
(l) other unsecured Indebtedness; provided that Indebtedness of the Borrower or any Subsidiary, in an aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, that at the time of incurrence of such Indebtedness (of, and after giving effect thereto) to, the incurrence thereof, would not exceed the greater of (i) $150.0 million 1,000,000,000 and (ii) 9.04.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of ; provided that with respect to (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted Indebtedness issued by the Term Borrower and Guaranteed by any Subsidiary Loan Credit Agreement as in effect on Party after the Closing Date and (ii) any debt security issued by any Subsidiary Loan Party after the Closing Date, the Guarantee by such Subsidiary Loan Party or the debt security of such Subsidiary Loan Party shall be subject to the Intercreditor Agreement or another intercreditor agreement not materially less favorable to the Lenders than the Intercreditor Agreement;
(l) Indebtedness of the Borrower pursuant to (i) the Senior Unsecured Notes, the Senior Notes and the Interim Loan Facility in an aggregate principal amount that is not in excess of $6,775,000,000 plus the PIK Interest Amount, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause paragraph (ml) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable6.01, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this AgreementAgreement (other than Retained Notes maturing after the Term B Facility Maturity Date) (subject to the proviso at the end of this clause (m)), (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , and (iv) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party and Party; provided, that (vx) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying other Indebtedness is subordinatedso subordinated and (y) with respect to any Indebtedness issued by the Borrower and permitted pursuant to clause (a) (to the extent such Indebtedness is not Guaranteed by such Subsidiary Loan Party on the Closing Date), (k), (l) or (r) of this Section 6.01, any Guarantee thereof by a Subsidiary Loan Party shall be subject to the Intercreditor Agreement or another intercreditor agreement not materially less favorable to the Lenders than the Intercreditor Agreement;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, 2008 Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) other Indebtedness so long as (A) no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Senior Secured Leverage Ratio on a Pro Forma Basis, is 2.00 Basis shall not be greater than 4.5 to 1.00 or greater (“Ratio Debt”) 1.0 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
provided, however, that (cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (Ax) Indebtedness need of Subsidiaries that are not be permitted solely by reference Subsidiary Loan Parties that is outstanding pursuant to one category of Permitted Indebtedness described clause (r)(i) shall not at any time exceed $500 million in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof the aggregate and (By) in with respect to (i) any Indebtedness issued by the event that an item of Indebtedness Borrower and Guaranteed by any Subsidiary Loan Party after the Closing Date and (other than ii) any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets debt security issued by any Subsidiary Loan Party after the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb))Closing Date, the Borrower may, in its sole discretion, reclassify Guarantee by such item Subsidiary Loan Party or the debt security of Indebtedness and such item of Indebtedness Subsidiary Loan Party shall be treated as having been incurred subject to the Intercreditor Agreement or existing pursuant another intercreditor agreement not materially less favorable to such other clause.the Lenders than the Intercreditor Agreement;
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) (i) Indebtedness existing or committed on the Closing Date (provided, that any Indebtedness listed that is in excess of $5.0 million individually is set forth on Schedule 6.01(a6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (or in respect thereofthe case of a letter of credit, any replacement, renewal or extension of such letter of credit) (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary) and (ii) intercompany Indebtedness existing on the Closing Date and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) all such Indebtedness, if owed to a Loan Party, shall be evidenced by the Global Intercompany Note or other promissory note and shall be subject to a first priority Lien pursuant to the applicable Security Document and (ii) any Indebtedness of a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Loan Obligations under this Agreement on subordination terms as described in the Global Intercompany Note or on other subordination terms reasonably satisfactory to the Administrative Agent and the Borrower;
(b) Indebtedness created hereunder or (including pursuant to Section 2.21) and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements not entered into for speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness business or consistent with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrencepast practice or industry practices;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (ie) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another any Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by of any Subsidiary to the Borrower or any other Subsidiary Subsidiary; provided, that (i) all such Indebtedness, if owed to a Loan Party Party, shall be evidenced by the Global Intercompany Note or other promissory note and shall be subject to a first priority Lien pursuant to the applicable Security Document and (ii) other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries, (x) Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Loan Parties shall be subject to Section 6.04(b) or (gg) and (y) Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party (the “Subordinated Intercompany Debt”) shall be subordinated to the Loan Obligations pursuant under this Agreement on subordination terms as described in the Global Intercompany Note or on other subordination terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent and the Borrower;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of businessbusiness or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness or consistent with past practice or industry practices;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (in each case, including a Permitted Business Acquisition), where such acquisition, merger, consolidation or amalgamation is not prohibited by this Agreement; provided, (A) to the extent required by the lenders providing such Indebtedness, the conditions set forth in each caseclause (c) of Section 4.01 shall be satisfied, (1B) no Event in the case of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed secured by a Lien on the Collateral that is First Lien Debt, pari passu in right of security with the First Lien Leverage Ratio shall not exceed Liens securing the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien DebtObligations, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is either (I) not greater than 2.50 to 1.00 or (II) no greater than the Senior Secured Leverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (C) in the case of any such Indebtedness secured by Liens on Collateral that are junior in right of security to the Liens securing the Obligations, the Total Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is either (I) not greater than 2.75 to 1.00 or (II) no greater than the Total Secured Leverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (D) in the case of any other such Indebtedness, the Fixed Charge Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is either (I) not less than 2.00 to 1.00 or (II) no less than the Fixed Charge Coverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation and (E) the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties under this clause (h), together with the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to Section 6.01(r), shall not exceed the greater of $75.0 million and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence (but not assumption) of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger, consolidation or amalgamation shall be subject to the last paragraph of this Section 6.01 and the incurrence (but not assumption) of any such Indebtedness that is a term loan secured by a Lien on the Collateral that is pari passu in right of security with the Liens securing the Obligations shall be subject to the requirements of Section 2.21(b)(viii); and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause ;
(i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(ji) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, slot financing arrangements and other purchase money Indebtedness with respect incurred by the Borrower or any Subsidiary prior to additions or improvements within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests in any person owning such property) permitted under this Agreement in order to Real Property finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, exceed the greater of (i) $100.0 million and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) 7.0% any Permitted Refinancing Indebtedness in respect thereof;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness any Sale and Lease-Back Transaction that is incurred for which Required Financial Statements have been delivered pursuant to permitted under Section 5.046.03, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) [Reserved]other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and immediately after giving effect to, the incurrence thereof, would not exceed the greater of $150.0 million and 0.40 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(l) other unsecured Indebtedness; provided that Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0than 100% of Consolidated Total Assets as the amount of net cash proceeds received by the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04Borrower from Excluded Debt Contributions;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) by the Borrower or any Subsidiary Loan Party of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iiiii) by any Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(w)); , (iviii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party and (viv) by the Borrower or any Subsidiary Loan Party of Indebtedness of Foreign Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes purpose in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided provided, that (x) Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is so subordinated;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligationsobligations (including earn outs), in each case, incurred or assumed in connection with the Closing Date Transactions, Transactions and any Permitted Business Acquisition, Permitted Investment other Investments or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than Guarantees obligations in respect of Indebtedness incurred by any person acquiring all other Indebtedness) in the ordinary course of business or any portion of such business, assets consistent with past practice or Subsidiaries for the purpose of financing any such Permitted Business Acquisitionindustry practice;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as (A) to the extent required by the lenders providing such Indebtedness, the conditions set forth in clause (c) of Section 4.01 shall be satisfied (provided that if such Indebtedness is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrower and the Master Lease Tenants) or (i) (with respect to the Borrower and the Master Lease Tenants) shall have occurred and be continuing or would result therefrom) and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness (x) in the case of Indebtedness that is secured by a Lien on the Collateral that is pari passu in right of security with the Term B Loans or the Initial Revolving Loans, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 2.50 to 1.00 (y) in the case of Indebtedness that is secured by a Lien on the Collateral that is junior in right of security to the Term B Loans and the Initial Revolving Loans, the Total Secured Leverage Ratio on a Pro Forma Basis is not greater than 2.75 to 1.00 and (z) in the case of unsecured Indebtedness, the Fixed Charge Coverage Ratio, Ratio on a Pro Forma Basis, Basis is at least 2.00 to 1.00 or greater 1.00; provided, however, that (“Ratio Debt”I) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties under this clause (r), together with the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to Section 6.01(h), shall not exceed the greater of $75.0 million and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (II) the Net Proceeds of any Indebtedness incurred pursuant to this clause Section 6.01(r) at such time shall not be netted for purposes of such calculation of the Senior Secured Leverage Ratio and the Total Secured Leverage Ratio, as applicable, (sIII) any Indebtedness incurred pursuant to Section 6.01(r)(i) shall be subject to the last paragraph of Section 6.01, (IV) any Indebtedness incurred pursuant to Section 6.01(r)(i)(x) in the form of term loans that is secured by a Lien on the Collateral that is pari passu in right of security with the Term B Loans shall be subject to the requirements of Section 2.21(b)(viii) and (V) if the incurrence of Indebtedness pursuant to Section 6.01(r)(i) occurs concurrently with the incurrence of Indebtedness pursuant to Section 6.01(k), then such Indebtedness incurred in reliance on Section 6.01(k) shall not exceedbe used in the calculation of the Senior Secured Leverage Ratio, at the time Total Secured Leverage Ratio and the Fixed Charge Coverage Ratio for purposes of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million Section 6.01(r)(i); and (ii) 2.50% Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness of Consolidated Total Assets as Subsidiaries that are not Subsidiary Loan Parties in an aggregate outstanding principal amount not to exceed the greater of $75.0 million and 0.20 times the end of EBITDA calculated on a Pro Forma Basis for the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04then most recently ended Test Period and any Permitted Refinancing Indebtedness in respect thereof;
(t) unsecured 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits in connection with Permitted Receivables Financings in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and advance payments received in the ordinary course use of business from customers for goods and services purchased in the ordinary course of businessproceeds thereof, would not exceed $15.0 million;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent that Administrative Agent or by one or more of the Lenders or their Affiliates and (in each case) established for the Borrower’s and its Subsidiaries’ ordinary course of operations (such obligations are collateralized by cash or cash equivalentsIndebtedness, the “Overdraft Line”), which Indebtedness may be secured under the Security Documents;
(x) Indebtedness consisting of, or incurred on behalf of, or representing Guarantees of promissory notes issued by Indebtedness of, joint ventures not in excess, at any one time outstanding, the Borrower or any other Restricted Subsidiary to current or former officersgreater of $75.0 million and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and;
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (Ay) Indebtedness need not be permitted solely by reference used to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a)finance, (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant issued for the purpose of financing, Expansion Capital Expenditures or Development Projects in an aggregate principal amount not to such other clause.exceed, together with the aggregate principal amount of Indebted
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any : Indebtedness listed existing on the Amendment Effective Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
Indebtedness (e) other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Company or any Subsidiary); Indebtedness created hereunder and under the other Loan Documents; Indebtedness pursuant to Swap Agreements; Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Company or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(f) intercompany ; Indebtedness between of the Company to Holdings or among any Subsidiary and of any Subsidiary to Holdings, the Borrower and the Restricted Subsidiaries Company or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower Company to Holdings or any Subsidiary and NYDOCS01/1270096.12 ▇▇▇▇▇ – A&R Revolving Credit Agreement Indebtedness of any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisions;
(g) the Administrative Agent; Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other ; Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the applicable Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Company or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time provided, no Default or Event of the incurrence Default shall have occurred and be continuing or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) would result therefrom; Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Company or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property that is respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof; provided, that, if immediately after giving effect to such transaction, the subject Total Net First Lien Leverage Ratio of such the Company on a Pro Forma Basis would be greater than 4.00 to 1.00, then the amount of Indebtedness and incurred pursuant to this paragraph (ii) i), when combined with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03 6.03, shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 150 million and (ii) 9.04.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(m) ; Capital Lease Obligations incurred by the Company or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness consisting in respect thereof; other Indebtedness of (i) Term Loan Obligations the Company or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $175 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04; NYDOCS01/1270096.12 ▇▇▇▇▇ – A&R Revolving Credit Agreement Indebtedness of the Company and/or its Subsidiaries pursuant to (i) the Second Lien Notes in an aggregate principal amount that is not in excess of $1,525.0 million, (A) $625.0 million plus (Bii) the ▇▇▇▇▇ Senior Subordinated Notes in an aggregate principal amount that is not in excess of any Incremental $454.6 million, (iii) the Covalence Senior Subordinated Notes in an aggregate principal amount that is not in excess of $265 million, (iv) the extensions of Term Loans or Incremental Equivalent Term Debt, in each case permitted by under the Term Loan Credit Agreement as Agreement, (v) the First Priority Notes in effect on the Closing Date an aggregate principal amount that is not in excess of $1,050.6 million, and (iivi) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(n) ; Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower Company and its Subsidiaries described in clause paragraph (m1) of this Section 6.01 6.01, so long as the Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof is subordinated substantially on terms as set forth in the Senior Subordinated Notes Indentures with respect to the Senior Subordinated Notes, and so long as any Liens securing the Term Loan Obligations Guarantee of the Original Second Lien Notes or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) by the Company or any Subsidiary Loan Party of any Indebtedness of the any Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Company or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Foreign Subsidiary, and (v) by the Company of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by Borrower the Company or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinated;
(o) under the Senior Subordinated Notes Indentures; Indebtedness arising from agreements of Borrower the Company or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, Specified Stock Purchases and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisition;
acquisition; Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (pother than obligations in respect of other Indebtedness) in the ordinary course of business; Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) ; Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as incurred by the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 Company or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio DebtSubsidiary Loan Party; provided that (A) at the time of the incurrence of any such Indebtedness pursuant to clause (i) above (and after giving effect NYDOCS01/1270096.12 ▇▇▇▇▇ – A&R Revolving Credit Agreement thereto), no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) the Company and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the issuance incurrence or assumption of such Indebtedness and (C) in the case of any such Indebtedness that is secured, immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Total Net First Lien Leverage Ratio on a Pro Forma Basis shall not be greater than 3.75 to 1.00 and (ii) Permitted Refinancing Indebtedness in respect thereof; Indebtedness of Foreign Subsidiaries; provided that the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(iclause (s), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) when aggregated with all other Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate and outstanding principal amount of Indebtedness incurred pursuant to this clause (s) ), shall not exceed, exceed the greater of $100 million and 10.0% of the consolidated assets of the Foreign Subsidiaries at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) incurrence; unsecured Indebtedness in respect of obligations of the Company or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) ; Indebtedness representing deferred compensation to employees, directors and officers employees of the Company or any Subsidiary incurred in the ordinary course of business;
; Indebtedness in connection with Permitted Receivables Financings; provided that, after giving effect to such Indebtedness, the Borrowers shall be in compliance with Section 2.11(b); Indebtedness of Foreign Subsidiaries incurred under lines of credit or overdraft facilities (vincluding, but not limited to, intraday, ACH and purchasing card/T&E services) Indebtedness arising from customer deposits extended by one or more financial institutions reasonably acceptable to the Administrative Agent or one or more of the Lenders and advance payments received (in the each case) established for such Foreign Subsidiaries’ ordinary course of business from customers for goods operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and services purchased in the ordinary course Security Documents; Indebtedness incurred on behalf of, or representing Guarantees of business;
(w) Indebtedness consisting of, joint ventures not in excess, at any one time outstanding, of reimbursement obligations related to bank guarantees the greater of $175 million or 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the extent that date of such obligations are collateralized by cash or cash equivalents;
(x) incurrence for which financial statements have been delivered pursuant to Section 5.04; Indebtedness consisting of promissory notes issued by the Borrower Company or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates estates, spouses or family members former spouses to finance the purchase or redemption of Equity Interests of the Borrower Holdings or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) ; Indebtedness consisting of obligations of the Company or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such Person in connection with the Closing Date Transactions or Transactions, Specified Stock Purchases, Permitted Business Acquisitions or any other Investment expressly permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) ; and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) NYDOCS01/1270096.12 ▇▇▇▇▇ – A&R Revolving Credit Agreement all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbz) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) Indebtedness of the Company or any Subsidiary existing on the ClosingAmendment No. 1 Effective Date (provided that any such Indebtedness listed in excess of $10,000,000 shall be set forth on Schedule 6.01(a6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Company or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Company or any Subsidiary pursuant to Swap Agreements permitted by Section 6.10;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Company or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of the Company to any Subsidiary and of any Subsidiary to the Company or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiariesany other Subsidiary; provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party Subsidiary Guarantor or the Co-Borrower owing to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b6.04(a) and (ii) Indebtedness owing by of the Borrower or any other Subsidiary Loan Party Company to any Restricted Subsidiary and Indebtedness of any Subsidiary Guarantor or the Co-Borrower to any Subsidiary that is not a Loan Party is subordinated Subsidiary Guarantor or the Co-Borrower shall be made expressly subject to a note containing subordination provisions reasonably satisfactory to the Obligations pursuant to customary subordination provisionsCompany and the Administrative Agent;
(gi) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness and (ii) ordinary course Guarantees and any related credit support or suretyship arrangements so long as the same do not constitute Indebtedness for borrowed money or a Guarantee thereof;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received to the obligor by the Borrower such bank or other financial institution of its incurrence and (iiiii) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Company or any Subsidiary after the Closing Date and Indebtedness assumed or incurred or assumed in connection with a Permitted Business Acquisition; providedsuch acquisition, in each casemerger or consolidation and where such acquisition, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; permitted by this Agreement provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the aggregate amount of Indebtedness outstanding pursuant to this paragraph (h) and paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, permitted under Section 6.03 would not exceed (x) the greater of (i) $100.0 million [*] and (ii) 7.0[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger or consolidation, such assumption or such incurrence, as applicable for which Required Financial Statements financial statements have been delivered pursuant to Section 5.045.04 plus (y) an amount of Indebtedness for which, after giving effect to such issuance, incurrence or assumption, the Company would be in Ratio Compliance; provided, further (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) immediately after giving effect to such acquisition, merger or consolidation, the assumption and incurrence of any Indebtedness and any related transactions, the Company shall be in Pro Forma Compliance and (C) to the extent such Indebtedness is incurred in contemplation of such acquisition, merger or consolidation, it shall constitute Permitted Additional Debt; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that .
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Company or any Subsidiary prior to or within 270 [*] days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof, of such Indebtedness (together with the aggregate principal amount of Indebtedness outstanding pursuant to this paragraph (i) and paragraph (iih) of this Section 6.01 and the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments would not exceed (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect theretox) the greater of (i) $150.0 million [*] and (ii) 9.0[*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million Section 5.04 plus (By) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debtadditional amounts, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), to the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, issuance or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04Company is in Ratio Compliance;
(tj) unsecured Indebtedness Capital Lease Obligations incurred by the Company or any Subsidiary in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods any Sale and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require Lease-Back Transaction that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreementsis permitted under Section 6.03;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) (i) Indebtedness existing on the Closing Date (provided that any Indebtedness listed that is in excess of $25.0 million individually or $100.0 million in the aggregate shall only be permitted under this clause (a)(i) to the extent such Indebtedness is set forth on Schedule 6.01(a6.01 to the 2008 Credit Agreement) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary), (ii) intercompany Indebtedness existing on the Closing Date; provided that any Indebtedness of the Borrower or a Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (iii) the Retained Notes and any Permitted Refinancing Indebtedness incurred to Refinance the Retained Notes;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements not entered into for speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that other than in the case of intercompany Indebtedness between or among current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that , (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party owing to the Borrower or another any Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) or (ff) and (ii) Indebtedness owing by of the Borrower to any Subsidiary and Indebtedness of the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets (including, in each case, (1) no Event in connection with the acquisition of Default shall have occurred Subsidiaries and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect assets pursuant to such Permitted Business Acquisition and any related transactionsthe Post-Closing CMBS Transaction), (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such which Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each casecase exists at the time of such acquisition, on a Pro Forma Basis immediately after giving effect to merger, consolidation or amalgamation and is not created in contemplation of such incurrence event and where such acquisition, merger, consolidation or assumption of Indebtedness amalgamation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the time assumption and incurrence of any Indebtedness and any related transactions, the Borrower shall be in Pro Forma Compliance;
(i) Capital Lease Obligations, mortgage financings and other purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) after giving effect to the issuance, incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)such Indebtedness, the aggregate outstanding amount of Borrower shall be in Pro Forma Compliance, and (ii) any Permitted Refinancing Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionrespect thereof;
(j) Capital Lease Obligations, Indebtedness Obligations incurred with by the Borrower or any Subsidiary in respect to installations, repairs, improvement of any Sale and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Lease-Back Transaction that is permitted under Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) [Reserved];
(l) other unsecured Indebtedness; provided that Indebtedness of the Borrower or any Subsidiary, in an aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, that at the time of incurrence of such Indebtedness (of, and after giving effect thereto) to, the incurrence thereof, would not exceed the greater of (i) $150.0 million 1,000,000,000 and (ii) 9.04.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of ; provided that with respect to (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted Indebtedness issued by the Term Borrower and Guaranteed by any Subsidiary Loan Credit Agreement as in effect on Party after the Closing Date and (ii) any debt security issued by any Subsidiary Loan Party after the Closing Date, the Guarantee by such Subsidiary Loan Party or the debt security of such Subsidiary Loan Party shall be subject to the Intercreditor Agreement or another intercreditor agreement not materially less favorable to the Lenders than the Intercreditor Agreement;
(l) Indebtedness of the Borrower pursuant to (i) the Senior Unsecured Notes, the Senior Notes and the Interim Loan Facility in an aggregate principal amount that is not in excess of $6,775,000,000 plus the PIK Interest Amount, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause paragraph (ml) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable6.01, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this AgreementAgreement (other than Retained Notes maturing after the Term B Facility Maturity Date) (subject to the proviso at the end of this clause (m)), (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , and (iv) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party and Party; provided, that (vx) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying other Indebtedness is subordinatedso subordinated and (y) with respect to any Indebtedness issued by the Borrower and permitted pursuant to clause (a) (to the extent such Indebtedness is not Guaranteed by such Subsidiary Loan Party on the Closing Date), (k), (l) or (r) of this Section 6.01, any Guarantee thereof by a Subsidiary Loan Party shall be subject to the Intercreditor Agreement or another intercreditor agreement not materially less favorable to the Lenders than the Intercreditor Agreement;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, 2008 Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) other Indebtedness so long as (A) no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Senior Secured Leverage Ratio on a Pro Forma BasisBasis shall not be greater than 4.5 to 1.0 and (ii) Permitted Refinancing Indebtedness in respect thereof; provided, however, that (x) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is 2.00 outstanding pursuant to 1.00 or greater clause (“Ratio Debt”r)(i) shall not at any time exceed $500 million in the aggregate and (y) with respect to (i) any Indebtedness issued by the Borrower and Guaranteed by any Subsidiary Loan Party after the Closing Date and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at debt security issued by any Subsidiary Loan Party after the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)Closing Date, the aggregate outstanding amount Guarantee by such Subsidiary Loan Party or the debt security of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are such Subsidiary Loan Party shall be subject to the Intercreditor Agreement or another intercreditor agreement not Guarantors does not exceed $50.0 millionmaterially less favorable to the Lenders than the Intercreditor Agreement;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the are not Subsidiary Loan Parties in an aggregate amount not to exceed at any time outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04500 million;
(t) unsecured Indebtedness 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 90 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of businessconnection with Permitted Receivables Financings;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent that Administrative Agent or by one or more of the Lenders or their Affiliates and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such obligations are collateralized by cash or cash equivalentsIndebtedness, the “Overdraft Line”), which Indebtedness may be secured under the Security Documents;
(x) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in excess, at any one time outstanding, of $300 million;
(i) Indebtedness in connection with any Project Financings and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(z) (i) any Qualified Non-Recourse Debt and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) Indebtedness consisting of promissory notes Indebtedness issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates estates, spouses or family members former spouses to finance the purchase or redemption of Equity Interests of the Borrower Holdings or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(zbb) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date 2008 Transactions or and Permitted Business Acquisitions or any other Investment permitted hereunder;
(aacc) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any Subsidiary to any joint venture (regardless of the other Restricted Subsidiaries form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (other than any such sale including with respect to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiaryintercompany self insurance arrangements) of the Borrower or and its Subsidiaries;
(dd) Indebtedness pursuant to the Initial First Lien Notes and any Future First Lien Notes; provided that:
(i) the Administrative Agent shall have received a certificate signed by the Chief Financial Officer of the other Restricted Subsidiaries Borrower stating that the incurrence of such First Lien Notes shall not result in a reduction in the outstanding amount of the Obligations that are permitted to be secured by the Collateral without equally and ratably securing any Retained Notes; and
(other than in respect ii) the Borrower shall prepay Term Loans with the First Lien Net Proceeds of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves First Lien Notes in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity DateSection 2.11(h);
(bbee) Indebtedness in respect of Senior Unsecured Notes the Loan Parties that is either unsecured or secured by Liens ranking junior to the Liens securing the Obligations and the aggregate principal amount of which does not exceed the Incremental Amount and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness; andprovided that
(cci) all premium the Administrative Agent shall have received a certificate signed by the Chief Financial Officer of the Borrower stating that (if any1) the incurrence of such Indebtedness shall not result in a reduction in the outstanding amount of the Obligations that are permitted to be secured by the Collateral without equally and ratably securing any Retained Notes and (2) other than in the case of any such Permitted Refinancing Indebtedness, including tender premiumsthe Borrower has elected to decrease the Incremental Amount as a result of the incurrence of such Indebtedness as contemplated by the definition of Incremental Amount;
(ii) (1) the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the date that is ninety-one (91) days following the latest Term B Facility Maturity Date in effect on the date of incurrence (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default), defeasance costs(2) the covenants, interest (including post-petition interest)events of default, feesguarantees, expenses, charges collateral and additional or contingent interest on obligations described in clauses (a) through (bb) other terms of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of such Indebtedness (other than any item of Indebtedness interest rate and redemption premiums), taken as a whole, are not more restrictive to the Borrower and the Subsidiaries than those set forth in Sections 6.01(a)the Initial First Lien Notes Indenture; provided that a certificate of the Chief Financial Officer of the Borrower delivered to the Administrative Agent in good faith at least three Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement, and (b)3) in the case of any such secured Indebtedness, (m) no Subsidiary of the Borrower is a borrower or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (guarantor other than Sections 6.01(a), (b), (m) any Subsidiary Loan Party which shall have previously or (bb)), substantially concurrently Guaranteed the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.Ob
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) (i) Indebtedness existing or committed on the Closing Date (provided, that any Indebtedness listed that is in excess of $5.0 million individually is set forth on Schedule 6.01(a6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (or in respect thereofthe case of a letter of credit, any replacement, renewal or extension of such letter of credit) (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary) and (ii) intercompany Indebtedness existing on the Closing Date and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) all such Indebtedness, if owed to a Loan Party, shall be evidenced by the Global Intercompany Note or other promissory note and shall be subject to a first priority Lien pursuant to the applicable Security Document and (ii) any Indebtedness of a Loan Party to any Subsidiary that is not a Loan Party shall be subordinated to the Loan Obligations under this Agreement on subordination terms as described in the Global Intercompany Note or on other subordination terms reasonably satisfactory to the Administrative Agent and the Borrower;
(b) Indebtedness created hereunder or (including pursuant to Section 2.21) and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements not entered into for speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness business or consistent with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrencepast practice or industry practices;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (ie) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another any Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by of any Subsidiary to the Borrower or any other Subsidiary Subsidiary; provided, that (i) all such Indebtedness, if owed to a Loan Party Party, shall be evidenced by the Global Intercompany Note or other promissory note and shall be subject to a first priority Lien pursuant to the applicable Security Document and (ii) other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries, (x) Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Loan Parties shall be subject to Section 6.04(b), (r) or (gg) and (y) Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party (the “Subordinated Intercompany Debt”) shall be subordinated to the Loan Obligations pursuant under this Agreement on subordination terms as described in the Global Intercompany Note or on other subordination terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent and the Borrower;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of businessbusiness or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness or consistent with past practice or industry practices;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (in each case, including a Permitted Business Acquisition), where such acquisition, merger, consolidation or amalgamation is not prohibited by this Agreement; provided, (A) to the extent required by the lenders providing such Indebtedness, the conditions set forth in each caseclause (c) of Section 4.01 shall be satisfied, (1B) no Event in the case of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed secured by a Lien on the Collateral that is First Lien Debt, pari passu in right of security with the First Lien Leverage Ratio shall not exceed Liens securing the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien DebtObligations, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is either (I) not greater than (i) on any date on or prior to December 31, 2017, 3.75 to 1.00 and (ii) on any date on or after January 1, 2018, 4.25 to 1.00 or (II) no greater than the Senior Secured Leverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (C) in the case of any such Indebtedness secured by Liens on Collateral that are junior in right of security to the Liens securing the Obligations, the Total Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is either (I) not greater than 4.50 to 1.00 or (II) no greater than the Total Secured Leverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (D) in the case of any other such Indebtedness, the Fixed Charge Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is either (I) not less than 2.00 to 1.00 or (II) no less than the Fixed Charge Coverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (E) the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties under this clause (h), together with the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to Section 6.01(r), shall not exceed the greater of $20.0 million and 0.345 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (F) if the incurrence or assumption of Indebtedness pursuant to this clause (h)(i) occurs concurrently with the incurrence of Indebtedness pursuant to Section 6.01(k), then such Indebtedness incurred in reliance on Section 6.01(k) shall not be used in the calculation of the Senior Secured Leverage Ratio, the Total Secured Leverage Ratio and the Fixed Charge Coverage Ratio for purposes of this clause (h)(i); provided, further, that the incurrence (but not assumption) of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger, consolidation or amalgamation shall be subject to the last paragraph of this Section 6.01 and the incurrence (but not assumption) of any such Indebtedness that is a term loan secured by a Lien on the Collateral that is pari passu in right of security with the Liens securing the Obligations shall be subject to the requirements of Section 2.21(b)(viii); and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause ;
(i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(ji) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, slot financing arrangements and other purchase money Indebtedness with respect incurred by the Borrower or any Subsidiary prior to additions or improvements within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests in any person owning such property) permitted under this Agreement in order to Real Property finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, exceed the greater of (i) $100.0 25.0 million and (ii) 7.0% of Consolidated Total Assets as of 0.43 times the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, EBITDA calculated on a Pro Forma BasisBasis for the then most recently ended Test Period, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionrespect thereof;
(sj) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness Capital Lease Obligations incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Sale and Lease-Back Transaction that is permitted under Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges6.03, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and;
(cck) all premium other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and immediately after giving effect to, the incurrence thereof, would not exceed the greater of $30.0 million and 0.515 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (Al) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, or any Subsidiary in its sole discretion, reclassify such item an aggregate outstanding principal amount not greater than 100% of Indebtedness and such item the amount of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.net cash proceeds received by the Borrower from Excluded Debt Contributions;
Appears in 1 contract
Indebtedness. IncurThe Borrower will not permit any Subsidiary to contract create, create incur, assume or assume suffer to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofof the Subsidiary Guarantors under the Subsidiary Guaranty;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party Guarantor to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness Guarantor and (ii) Indebtedness of any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time Subsidiary (other than a Specified Subsidiary) (x) consisting of Contingent Obligations in respect of, or (y) constituting reimbursement obligations under letters of credit issued in support of, obligations (other than Contingent Obligations) of any Subsidiary of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, Borrower to the extent commitments such other obligations are permitted by this Agreement (but excluding any Contingent Obligations in respect thereof are permanently reduced by the amount of such prepaymentsof, or reimbursement obligations relating to, Independent Litigation Bonds);
(kc) [Reserved]Obligations under letters of credit described in Section 8.03(b);
(ld) other unsecured Indebtedness; provided that the aggregate outstanding principal amount Indebtedness of Indebtedness incurred pursuant to this clause Reyn▇▇▇▇ ▇▇▇acco (lx) shall not exceed, at the time under any guaranty of incurrence Permitted Currency Agreements and/or (y) constituting reimbursement obligations in respect of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04Independent Litigation Bonds;
(me) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (ivany Specified Subsidiary) by any Restricted Subsidiary that is not a Loan Party under letters of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries credit incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment purchase of tobacco or other products or goods for use in the disposition day-to-day operations of any business, assets the Borrower and its Subsidiaries consistent with the Borrower's past practices or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisitionthen current industry practices;
(pf) Indebtedness supported by a Letter of Creditsecured, in a principal amount not whole or in excess of the stated amount of such Letter of Creditpart, by Liens permitted by Section 8.03(e);
(qg) Indebtedness consisting of Existing Debt (i) the financing of insurance premiums and any extensions, renewals or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence refinancings of such Indebtedness, other Indebtedness so long as to the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at extent not increasing the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04thereof);
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Credit Agreement (Rj Reynolds Tobacco Holdings Inc)
Indebtedness. IncurThe Borrower will not, create and will not permit any Subsidiary to, create, incur, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofcreated under the Loan Documents;
(b) Indebtedness created hereunder existing on the Effective Date and set forth in Schedule 6.01 and extensions, renewals, replacements and other modifications of any such Indebtedness that do not increase the outstanding principal amount thereof or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtednessresult in an earlier maturity date or decreased weighted average life thereof;
(c) Indebtedness pursuant owed by Borrower to Hedge Agreements other than for speculative purposesa Guarantor or by a Guarantor to Borrower or the Guarantor’s parent;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing Guarantees by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Guarantor of any Indebtedness of the Borrower or any other Guarantor;
(e) Indebtedness owed by a Foreign Subsidiary Loan Party permitted to be Borrower or owed by a Foreign Subsidiary to its parent incurred under this Agreement, in accordance with the restrictions set forth in Section 6.04(i);
(iiif) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not Guarantees provided in accordance with the restrictions set forth in Section 6.04(i) by the Borrower or a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and Foreign Subsidiary;
(vg) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted with respect to be incurred under Section 6.01(s) surety and appeal bonds, performance and return–of–money bonds, and other similar obligations not exceeding at any time outstanding a Dollar Amount equal to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated$25,000,000 in aggregate liability;
(oh) Indebtedness arising from agreements constituting of Borrower obligations to reimburse worker’s compensation insurance companies for claims paid by such companies on Borrower’s or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, a Subsidiaries’ behalf in each case, incurred or assumed in connection accordance with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or policies issued to Borrower and the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business AcquisitionSubsidiaries;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments arising in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) Hedging Agreements entered into in the ordinary course of business to enable Borrower or a Subsidiary (i) to limit the market risk of holding currency in either the cash or futures market or (ii) to fix or limit Borrower’s or any Subsidiaries’ interest expense;
(j) Indebtedness arising as a result of the licensing of software or data by the Borrower and the Subsidiaries; and
(k) The following Indebtedness which may only be created, incurred or assumed if no Default exists or would result therefrom and if after giving proforma effect to such Indebtedness, the Borrower shall be in compliance with Article VII as of the most recently ended fiscal quarter of Borrower:
(i) Purchase Money Indebtedness of the Borrower;
(ii) unsecured Indebtedness (other than obligations in respect of Hedging Agreements and Guarantees of Indebtedness of others) of the Borrower;
(iii) in addition to Purchase Money Indebtedness of the Borrower, other secured Indebtedness of the Borrower (other than obligations of the Borrower under any Hedging Agreement and Guarantees of Indebtedness of others); provided that as of the date of the incurrence of such Indebtedness and after giving effect thereto the sum of (A) the aggregate principal Dollar Amount of such secured Indebtedness of Borrower then outstanding (not including any Purchase Money Indebtedness) plus (B) the aggregate outstanding principal Dollar Amount of all secured Indebtedness assumed by Subsidiaries in accordance with the permissions set forth in clause (iv) of this Section and then outstanding (but not including any Purchase Money Indebtedness), shall not exceed $30,000,000 at any time;
(iv) secured Indebtedness of any Person that becomes a Subsidiary after the date hereof or is merged with or into a Subsidiary in accordance with the permissions herein set forth and extensions, renewals, replacements and other modifications of any such Indebtedness; provided that: (A) such Indebtedness exists at the time such Person becomes a Subsidiary or was so merged and is not created in contemplation of or in connection with such Person becoming a Subsidiary or merger and (B) as of the borrowing date of money the incurrence of such Indebtedness under the permissions of this clause (iv) and after giving effect thereto, the sum of (1) the aggregate principal Dollar Amount of the secured Indebtedness of Borrower then outstanding and incurred under the permission of clause (iii) (not including any Purchase Money Indebtedness) plus (2) the aggregate outstanding principal Dollar Amount of all secured Indebtedness incurred or assumed under this clause (iv) and then outstanding (but not including any Hedge Agreements;
(uPurchase Money Indebtedness) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of businessshall not exceed $30,000,000 at any time;
(v) unsecured Indebtedness arising from customer deposits of any Person that becomes a Subsidiary after the date hereof or is merged with or into a Subsidiary in accordance with the permissions herein set forth; provided that such Indebtedness exists at the time such Person becomes a Subsidiary or was so merged and advance payments received is not created in the ordinary course contemplation of business from customers for goods and services purchased or in the ordinary course of businessconnection with such Person becoming a Subsidiary or merger;
(wvi) Indebtedness consisting (other than obligations in respect of reimbursement obligations related Hedging Agreements, Guarantees of Indebtedness of others and Indebtedness in respect of mandatory redemption or mandatory dividend rights on Equity Interests) of the Subsidiaries incurred after the Effective Date and owed to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by any Person other than the Borrower or any Subsidiary; provided that as of the date of the incurrence of such Indebtedness under the permissions of this clause (vi) and after giving effect thereto, the aggregate principal Dollar Amount of all such Indebtedness incurred under the permissions of this clause (vi) then outstanding shall not exceed $15,000,000 (excluding the principal Dollar Amount of the Indebtedness incurred under the other Restricted Subsidiary permissions of this Section 6.01); and
(vii) Purchase Money Indebtedness of the Foreign Subsidiaries which is owed to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of any Person other than the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees Subsidiary; provided the aggregate outstanding principal Dollar Amount of all Purchase Money Indebtedness owed by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
Foreign Subsidiaries (z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or including, any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after outstanding on the Maturity Date;
(bbEffective Date and identified on Schedule 6.01) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausenever exceed $25,000,000.
Appears in 1 contract
Sources: Credit Agreement (Acxiom Corp)
Indebtedness. The Company shall not, and shall not cause or permit any of the Guarantors, directly or indirectly, to Incur, create or assume remain or become directly or indirectly liable with respect to, any Indebtedness, except:except for the following ("Permitted Indebtedness"):
(i) Indebtedness under the Bridge Notes, the Term Notes, the Exchange Notes and the Guarantees;
(ii) Indebtedness incurred pursuant to the Senior Credit Facility provided the principal amount at any time outstanding does not exceed $25,000,000 in the aggregate, reduced by any required permanent repayments (which are accompanied by a corresponding permanent commitment reduction) thereunder;
(iii) other Indebtedness of the Company and its Subsidiaries outstanding on the Closing Date described in Schedule H reduced by the ---------- amount of any scheduled amortization payments or mandatory prepayments when actually paid or permanent reductions thereon;
(iv) Interest Swap Obligations of the Company covering Indebtedness of the Company or any of its Subsidiaries and Interest Swap Obligations of any Subsidiary of the Company covering Indebtedness of such Subsidiary; provided, however, that such Interest Swap -------- ------- Obligations are entered into to protect the Company and its Subsidiaries from fluctuations in interest rates on Indebtedness incurred in accordance with this Agreement and the Senior Credit Facility to the extent the notional principal amount of such Interest Swap Obligation does not exceed the principal amount of the Indebtedness to which such Interest Swap Obligation relates;
(v) Indebtedness of the Company under Currency Agreements; provided that in the case of Currency Agreements which relate to -------- Indebtedness, such Currency Agreements do not increase the Indebtedness of the Company and its Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder;
(vi) Indebtedness of a Guarantor of the Company to the Company or to a Guarantor of the Company for so long as such Indebtedness is held by the Company or a Guarantor of the Company, in each case subject to no Lien held by a Person other than the Company or a Guarantor of the Company; provided that if as of any date any Person -------- other than the Company or a Guarantor of the Company owns or holds any such Indebtedness or holds a Lien in respect of such Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness by the issuer of such Indebtedness;
(vii) Indebtedness of the Company to a Wholly-Owned Subsidiary of the Company for so long as such Indebtedness is held by a Wholly-Owned Subsidiary of the Company, in each case subject to no Lien; provided that (a) any Indebtedness listed on Schedule 6.01(a) of the Company to any -------- Wholly-Owned Subsidiary of the Company is unsecured and any Permitted Refinancing Indebtedness in respect thereof;
subordinated, pursuant to a written agreement, to the Company's obligations under this Agreement and the Notes and (b) Indebtedness created hereunder or under the if as of any date any Person other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any than a Wholly-Owned Subsidiary of the foregoing Indebtedness;
(c) Company owns or holds any such Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence any Person holds a Lien in respect of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon date shall be deemed the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrenceconstituting Permitted Indebtedness by the Company;
(fviii) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient fundsfunds in the ordinary course of business; provided, so long as -------- however, that such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by two business ------- days of incurrence;
(ix) Indebtedness of the Borrower Company or any of its incurrence and (iii) any other cash management Subsidiaries represented by letters of credit for the account of the Company or treasury services entered such Subsidiary, as the case may be, in order to provide security for workers' compensation claims, payment obligations in connection with self-insurance or similar requirements in the ordinary course of business;
(ix) Permitted Refinancing Indebtedness; and
(xi) additional Indebtedness incurred of the Company and its Subsidiaries in an aggregate principal amount not to exceed $5,000,000 at any one time outstanding. In addition to the foregoing, at any time after the Conversion Date, if no Potential Event of Default with respect to payment of principal of, or assumed in connection with a Permitted Business Acquisition; providedinterest on, in each case, (1) no the Notes or Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such Indebtedness, the Company or any Subsidiary Guarantor may incur Indebtedness if immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as Fixed Charge Coverage Ratio of the end of the fiscal quarter immediately prior Company would be greater than (a) 2.00 to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.041.0, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant is on or prior to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term DebtNovember 1, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement1999, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (iib) take or pay obligations contained in supply arrangements2.25 to 1.0, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to if the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days is after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employeesNovember 1, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause1999.
Appears in 1 contract
Sources: Senior Subordinated Credit Agreement (T Sf Communications Corp)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or (and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness);
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedge Hedging Agreements other than for speculative purposespermitted by Section 6.11;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that of (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another any other Subsidiary, (ii) the Borrower to any Subsidiary Loan Party is permitted under Section 6.04(bor (iii) any Subsidiary other than a Subsidiary Loan Party to the Borrower or any other Subsidiary; provided that (A) Indebtedness pursuant to clauses (i) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is of this Section 6.01(e) shall be unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent and the Required Lenders and (B) Indebtedness pursuant to customary subordination provisionsclause (iii) of this Section 6.01(e) shall be subject to Section 6.04(a);
(gf) Indebtedness (including obligations in respect of letters of credit, in an amount not to exceed, in the aggregate with the Indebtedness under Section 6.01(m)(A) below, $20.0 million outstanding at any time) in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business, so long as the underlying obligations with respect to any of the foregoing are not Indebtedness for borrowed money;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds or obligations under Cash Management Agreements, so long as in each case in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after of notification is received by to the Borrower or other applicable Loan Party or Subsidiary of its incurrence incurrence, and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(h) [reserved];
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of any property (real or personal and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance the acquisition, lease or improvement of such property, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate outstanding principal amount that at the time of, and after giving effect to, the incurrence thereof would not exceed $65.0 million; provided that any such Indebtedness (i) shall be secured only by the property that is acquired or improved (and any related property and assets subject to a common financing program of the subject type permitted under this Section 6.01(i)) in connection with the incurrence of such Indebtedness and proceeds, improvements and replacements thereof, and (ii) shall constitute not more than 100% of the Remaining Present Value aggregate consideration paid with respect to such property or improvement (and any related property subject to a common financing program of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness the type permitted under this clause Section 6.01(i));
(j) Capital Lease Obligations incurred by the Borrower or permitted any Subsidiary in respect of any Sale and Lease-Lease Back Transactions Transaction that is permitted under Section 6.03 if the proceeds of the related Sale 6.03, and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments Permitted Refinancing Indebtedness in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) [Reservedreserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of the Indebtedness of Holdings, the Borrower or any Subsidiary Loan Party described in clause (m) of this Section 6.01 6.01(u), so long as any the Liens securing the Term Loan Obligations Guarantee of such obligations (or any Permitted Refinancing Indebtedness in respect thereof thereof) are subject to the ABL/Term Loan ABL Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(sapplicable Intercreditor Agreement to which the Liens securing such Indebtedness described in Section 6.01(u) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicableare subject, (ii) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of Holdings, the Borrower or any other Subsidiary Loan Party permitted to be incurred under this AgreementSection 6.01, (iii) of Indebtedness otherwise permitted hereunder of by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party and (iv) of Indebtedness otherwise permitted hereunder of Subsidiaries that are not Loan Parties to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv6.04(i) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under or Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(s)); provided that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person that is subordinated in right of payment to other Indebtedness of such person shall be expressly subordinated in right of payment to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(om) Indebtedness in respect of (A) letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business, in an amount not to exceed, in the aggregate with the letters of credit permitted under Section 6.01(f) above, $20.0 million outstanding at any time, or (B) letters of credit issued in favor of a swingline lender or an issuing bank under the ABL Credit Agreement pursuant to arrangements designed to eliminate such swingline lender’s or issuing bank’s risk with respect to a defaulting lender’s participation in swingline loans or letters of credit, respectively, under the ABL Credit Agreement (including as contemplated by Section 2.05(a) thereof);
(n) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(qo) Indebtedness consisting of (i) the financing of insurance premiums premiums, or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(rp) (i) so long as no Default or Event Indebtedness of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does Subsidiary Loan Parties in an aggregate amount not to exceed $50.0 millionmillion outstanding at any time;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(tq) unsecured Indebtedness 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 so long as services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money money, cash management services or any Hedge Hedging Agreements;
(ur) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aai) unsecured Indebtedness in a an aggregate principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or $50.0 million at any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) time outstanding so long as immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis shall not be greater than 3.50 to 1.00; provided that the incurrence of any such Indebtedness matures at least 91 days after shall be subject to the Maturity Date;
last paragraph of this Section 6.01, and (bbii) Permitted Refinancing Indebtedness in respect of Senior Unsecured Notes any of the foregoing;
(t) [reserved];
(i) Indebtedness under the ABL Loan Documents (or under any other debt instrument with availability subject to a borrowing base formula) in an aggregate principal amount of up to $375.0 million as of the Closing Date (determined without reference to Hedging Agreements that are entered into in compliance with Section 6.11 hereof and constitute “Secured Hedging Agreements” under the ABL Credit Agreement (as in effect on the Closing Date without giving effect to any amendment, modification or waiver thereof), which amount may be increased by (x) an additional principal amount of up to $25.0 million after the Closing Date, plus (y) subject to compliance on a Pro Forma Basis with a Total Net First Lien Leverage Ratio (determined as if all commitments under the ABL Facility shall be deemed drawn) of 1:00 to 1:00, an additional principal amount of up to $50.0 million after the Closing Date after giving effect to any increase pursuant to subclause (x) above and (ii) any Permitted Refinancing Indebtedness in respect thereofof Indebtedness otherwise permitted under this Section 6.01(u); provided that the foregoing Indebtedness shall be subject to the applicable Intercreditor Agreement (if secured) and no such Indebtedness shall be subject to any payment subordination arrangements; and
(ccv) all premium premiums (if any, including tender premiums), defeasance costs, interest (including post-petition interestinterest but not, for the avoidance of doubt, accrued interest accreted to principal), fees, expenses, charges and additional or contingent interest on obligations described in clauses (aSections 6.01(a) through (bbu) above. For purposes of determining compliance with this Section 6.01, the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date on which such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that, if such Indebtedness is permitted hereby and is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced, plus (ii) to the extent payment of the following is not prohibited by this Agreement, the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing. For Further, for purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted permitted Indebtedness described in Section Sections 6.01(a) through Section 6.01(cc(v) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category one or more of Permitted the categories of permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), ) through (b), (m) or (bb)v), the Borrower mayshall, in its sole discretion, reclassify classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 and will only be required to include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses and such item of Indebtedness shall be treated as having been incurred or existing pursuant to only one of such other clauseclauses; provided that all Indebtedness under this Agreement outstanding on the Closing Date shall at all times be deemed to have been incurred pursuant to Section 6.01(b). With respect to any Indebtedness for borrowed money described in Section 6.01(s), (A) the stated maturity date of such Indebtedness shall be no earlier than the Latest Maturity Date in effect at the time such Indebtedness is issued, incurred or assumed (or, in the case of unsecured Indebtedness, 91 days after the Latest Maturity Date in effect at the time such Indebtedness is issued, incurred or assumed) and (B) except in respect of any such Indebtedness incurred under any revolving credit facility, the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of any of the Loans outstanding at the time such Indebtedness is issued, incurred or assumed.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposesSwap Agreements;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party and Indebtedness of any other Loan Party to any Subsidiary that is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms consistent with past practice or as reasonably satisfactory to customary subordination provisionsthe Administrative Agent and the Borrower;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) after giving effect to such acquisition, merger or consolidation, the time of the assumption and incurrence or assumption of any Indebtedness pursuant to clause and any related transactions, (ix) above (and after giving effect thereto)in the case of any such Indebtedness that is secured on a pari passu basis with the Term Loans, the aggregate outstanding amount Total Net First Lien Leverage Ratio shall not exceed 3.75 to 1.00, (y) in the case of any such Indebtedness incurred under this Section 6.01(ithat secured on a junior lien basis to the Term Loans, the Total Secured Net Leverage Ratio shall not exceed 4.25 to 1.00, or (z) together with in the case of any amounts incurred under Section 6.01(r)such Indebtedness that is unsecured, the (1) Total Net Leverage Ratio shall not exceed 4.50 to 1.00 or (2) Interest Coverage Ratio shall be less than 2.00 to 1.00, or, in the case of clauses (y) and (z) only, such leverage ratio shall not exceed the applicable leverage ratio prior to such incurrence, or the Interest Coverage Ratio shall not be less than the Interest Coverage Ratio prior to such incurrence, as applicable, in each casecase as of the last day of the most recently ended Test Period, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millioncalculated on a Pro Forma Basis;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness respective asset permitted under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (Agreement in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members order to finance the purchase such acquisition or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund chargesimprovement, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; andprovided, that the amount of Indebtedness incurred pursuant to this paragraph (i), when combined with the Remaining Present Value of outstanding leases permitted under Section 6.03, shall not exceed the greater of $137.0 million and 30.0% of EBITDA as of the end of the most recently completed Test Period immediately prior to the date of such incurrence;
(ccj) all premium Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(if anyk) other Indebtedness of the Borrower or any Subsidiary, including tender premiums)in an aggregate principal amount that at the time of, defeasance costsand after giving effect to, interest the incurrence thereof, would not exceed the greater of $227.5 million and 50.0% of EBITDA as of the end of the most recently completed Test Period;
(including post-petition interest)l) Indebtedness (i) pursuant to (i) the Existing Notes in an aggregate principal amount that is not in excess of $500.0 million, fees(ii) the Secured Notes in an aggregate principal amount that is not in excess of $800.0 million, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bbiii) of the Borrower or any Subsidiary pursuant to the extensions of credit under the Revolving Credit Agreement; provided that the amount of Indebtedness incurred by pursuant to this Section 6.01. For purposes clause (iii) shall not exceed the greater of determining compliance with this Section 6.01, (A1) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof $600.0 million and (B2) in the event that an item Borrowing Base and (iv) of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower mayor any Subsidiary, in its sole discretionas applicable, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to any Permitted Refinancing Indebtedness incurred to Refinance any such other clause.Indebtedness pursuant to this clause (l);
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrowers or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrowers or any Subsidiary pursuant to Swap Agreements permitted by Section 6.12;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Borrowers or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of the Borrowers to Holdings or among any Subsidiary and of any Subsidiary to Holdings, the Borrower and the Restricted Subsidiaries Borrowers or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower Borrowers to Holdings or any Subsidiary and Indebtedness of any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party is shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received to the obligor by the Borrower such bank or other financial institution of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(h) (i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrowers or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the aggregate amount of Indebtedness outstanding pursuant to this paragraph (h) and paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03, ) would not exceed the greater of (i) $100.0 75.0 million and (ii) 7.04% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger or consolidation, such assumption or such incurrence, as applicable for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04; provided, further (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger or consolidation, the assumption and incurrence of any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that and any related transactions, the Borrowers shall be in Pro Forma Compliance;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Borrowers or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof, together with the aggregate amount of such Indebtedness outstanding pursuant to this paragraph (i) and paragraph (iih) of this Section 6.01 and the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case6.03, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 75.0 million and (ii) 9.04% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Capital Lease Obligations incurred by the Borrowers or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness consisting of (i) Term Loan Obligations the Borrowers or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $100.0 million and 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Borrowers pursuant to (i) the Senior Unsecured Notes in an aggregate principal amount that is not in excess of $485.0 million, (A) $625.0 million plus (Bii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of any Incremental Term Loans or Incremental Equivalent Term Debt$300.0 million, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower Borrowers described in clause paragraph (m1) of this Section 6.01 6.01, so long as any Liens securing the Term Loan Obligations Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof are subject is subordinated substantially on terms as set forth in the Senior Subordinated Notes Indenture with respect to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicableSenior Subordinated Notes, (ii) by Holdings, the Borrowers or any Subsidiary Loan Party of any Indebtedness of the Borrower Borrowers or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrowers or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Foreign Subsidiary, and (v) by the Borrowers of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by Borrower the Borrowers or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of Borrower the Borrowers or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) Indebtedness consisting of Permitted Ratio Debt and Permitted Refinancing Indebtedness in respect thereof so long as (i) so long as no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom, (ii) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Total Senior Secured Bank Leverage Ratio on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and Basis after giving effect thereto)to such Indebtedness shall not be greater than 4.50 to 1.00 and (iii) the proceeds of such Permitted Ratio Debt are used to fund Permitted Business Acquisitions, the aggregate outstanding amount to repay Term Loans or to repay any Indebtedness of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionBorrower or any Subsidiary Loan Party;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the are not Subsidiary Loan Parties in an aggregate amount not to exceed $75.0 million outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04any time;
(t) unsecured Indebtedness in respect of obligations of the Borrowers or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrowers or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in connection with Permitted Receivables Financings; provided that the ordinary course of business from customers for goods and services purchased proceeds thereof are applied in the ordinary course of businessaccordance with Section 2.11(b);
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrowers and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent Administrative Agent or one or more of the Lenders and (in each case) established for the Borrowers’ and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and in the Security Documents (it being understood, however, that such obligations are collateralized by cash or cash equivalentsfor a period of 30 consecutive days during each fiscal year of the Borrowers the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed $10.0 million);
(x) intercompany Indebtedness consisting of promissory notes issued by in connection with the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06Restructuring Transactions;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary Senior Secured Notes and Permitted Refinancing Indebtedness in respect thereof (in the ordinary course case of businesssuch Permitted Refinancing Indebtedness, so long as all the requirements of the definition of the term “Senior Secured Notes” other than the requirement in clause (b) thereof) are met);
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any meeting all the requirements of the definition of the term “Senior Secured Notes”, other Restricted Subsidiaries than clause (b) of the definition of such term, in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a an aggregate principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund chargesIncremental Amount, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(ccaa) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbz) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Sources: Credit Agreement (RBS Global Inc)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to Holdings (prior to a Borrower Qualified IPO) or any Subsidiary and of any Subsidiary to Holdings (prior to a Borrower Qualified IPO), the Borrower or any other Subsidiary; provided, that, other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Holdings and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that subsidiaries to finance working capital needs of the subsidiaries, (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Loan Party to Holdings or any Subsidiary that is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall, if legally permissible, be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness (including obligations in respect of letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and completion guarantees provided by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to of its Subsidiaries in the Obligations pursuant to customary subordination provisionsordinary course of business or consistent with past practice or industry practice;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(h) (i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or of an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger, consolidation or amalgamation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger, consolidation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed amalgamation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the time of the assumption and incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)any related transactions, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are Senior Secured Leverage Ratio on a Pro Forma Basis shall not Guarantors does not exceed $50.0 millionbe greater than 4.25 to 1.00;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect by the Borrower or any Subsidiary prior to installationsor within 270 days after the construction, repairsacquisition, lease or improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financingsthe respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such construction, acquisition, lease or improvement, and any Permitted Refinancing Indebtedness with in respect to additions or improvements to Real Property thereof, in an aggregate outstanding principal amount not to exceed, that at the time of incurrence of such Indebtedness (of, and after giving effect thereto)to, and the incurrence thereof, together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03, would not exceed the greater of (i) $100.0 550.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.05.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness consisting in respect thereof;
(k) other Indebtedness of (i) Term Loan Obligations the Borrower or any Subsidiary, in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Borrower pursuant to (i) the Senior Unsecured Notes in an aggregate principal amount that is not in excess of $2,250.0 million (A) $625.0 million plus any interest paid by increases to principal), (Bii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of any Incremental Term Loans or Incremental Equivalent Term Debt$900.0 million, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (iiiii) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 6.01(l), so long as any Liens securing the Term Loan Obligations Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof are subject is subordinated on substantially the same terms as set forth in the Senior Subordinated Notes Indenture with respect to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicableSenior Subordinated Notes, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings (prior to a Borrower Qualified IPO) or any Restricted Subsidiary that is not a Subsidiary Loan Party that is otherwise permitted hereunder to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(b)); , (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) by the Borrower or any Subsidiary Loan Party of Indebtedness of Foreign Subsidiaries that are not Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) and to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)6.04(b); provided provided, that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) and trade letters of credit in the ordinary course of business;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) other Indebtedness incurred by the Borrower or any Subsidiary Loan Party so long as (A) no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom and (B) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Senior Secured Leverage Ratio on a Pro Forma Basis, is 2.00 Basis shall not be greater than 4.25 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionrespect thereof;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the are not Loan Parties in an aggregate amount not to exceed at any time outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 330 million and (ii) 2.503.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04Assets;
(t) unsecured Indebtedness 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, employees and directors and officers of the Borrower or any Subsidiary incurred (i) in the ordinary course of businessbusiness or (ii) in connection with the Transactions (including as a result of the cancellation or vesting of outstanding options and other equity-based awards in connection therewith);
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of businessconnection with Permitted Securitization Financings;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrower and the Subsidiaries incurred under overdraft, lines of credit or cash management facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent that Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such obligations are collateralized by cash or cash equivalentsIndebtedness, the “Cash Management Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and in the Security Documents;
(x) Indebtedness consisting incurred on behalf of, or representing Guarantees of promissory notes Indebtedness of, joint ventures not in excess, at any one time outstanding, of the greater of $550.0 million or 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(y) Indebtedness issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates estates, spouses or family members former spouses to finance the purchase or redemption of Equity Interests of the Borrower Holdings or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date Transactions or and Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used incurred in connection with Section 6.06(d) notes and earn-out obligations payable to sellers in joint ventures and Permitted Business Acquisitions; provided that required payments in respect thereof shall not exceed $50.0 million in 2007, $75.0 million in either 2008 or Section 6.09(b)(i)(3) or used to fund charges2009, expenses, accruals or reserves in accordance with clause (k) and 40% of the definition amount of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity DatePermitted Business Acquisitions in each subsequent year;
(bb) Indebtedness in respect of Senior Unsecured Notes Arbitrage Programs in an aggregate principal amount not to exceed the sum of (i) $10.0 million and any (ii) the aggregate amount of Permitted Refinancing Indebtedness in respect thereof; andInvestments related thereto from time to time;
(cc) all premium premiums (if any, including tender premiums, if any), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bb) above; and
(dd) Indebtedness of this Section 6.01the Borrower existing on the Closing Date pursuant to the Existing Senior Notes and any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness. For purposes of determining compliance with this Section 6.01, (A) the amount of any Indebtedness need not denominated in any currency other than Dollars shall be permitted solely by reference to one category of Permitted Indebtedness described calculated based on customary currency exchange rates in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) effect, in the event case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date that an item such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness (is incurred to refinance other Indebtedness denominated in a currency other than any item of Dollars (or in a different currency from the Indebtedness set forth in Sections 6.01(abeing refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (bi) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described defeasance costs and other costs and expenses incurred in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify connection with such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauserefinancing.
Appears in 1 contract
Sources: Credit Agreement (NRT Settlement Services of Missouri LLC)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(ei) Indebtedness created hereunder and under the other Loan Documents, (ii) Indebtedness under the “Loan Documents” (as defined in the ABL Credit Agreement), and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that the aggregate principal amount of Indebtedness at any time outstanding under this clause (ii) shall not exceed $250,000,000;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements permitted by Section 6.11;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) ), and (ii) Indebtedness owing by of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence incurrence, and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date, and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation or amalgamation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactionsconsolidation or amalgamation is permitted by this Cash Flow Credit Agreement, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger or consolidation or amalgamation, the time of the assumption and incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)any related transactions, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), Borrower shall be in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionPro Forma Compliance;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of any property (real or personal, and whether through the direct purchase of property that is or the subject Equity Interests of any person owning such property) permitted under this Cash Flow Credit Agreement in order to finance the acquisition, lease or improvement of such property, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate outstanding principal amount that at the time of, and (ii) after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case6.03, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 105.0 million and (ii) 9.07.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness consisting in respect thereof;
(k) other Indebtedness of (i) Term Loan Obligations the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $105.0 million and 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Borrower pursuant to (i) the Second Lien Notes in an aggregate principal amount that is not in excess of $580.0 million, (A) $625.0 million plus (Bii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of any Incremental Term Loans or Incremental Equivalent Term Debt$300.0 million, (iii) the Senior Secured Notes in each case permitted by the Term Loan Credit Agreement as an aggregate principal amount that is not in effect on the Closing Date excess of $345.0 million, and (iiiv) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause (mii) of paragraph (b) and paragraph (l) of this Section 6.01 6.01, so long as any (x) the Liens securing the Term Guarantee of the obligations under the “Loan Obligations Documents” (as defined in the ABL Credit Agreement) or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Senior Lien Intercreditor Agreement, and (y) the Guarantee of the Senior Subordinated Notes or, prior to the date that is one year prior to the maturity date of the Senior Subordinated Notes, any Permitted Refinancing Indebtedness in respect thereof, is subordinated in right of payment substantially on terms as applicableset forth in the Senior Subordinated Notes Indenture with respect to the Senior Subordinated Notes and so long as any Liens securing the Guarantee of the Second Lien Notes or any Permitted Refinancing Indebtedness in respect thereof are subject to the Junior Lien Intercreditor Agreement or another intercreditor agreement reasonably satisfactory to the Administrative Agent reflecting that such Liens are junior in priority to the Lien of the Administrative Agent securing the Obligations under the Loan Documents, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Cash Flow Credit Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Foreign Subsidiary, and (v) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated in right of payment to other Indebtedness of such person shall be expressly subordinated in right of payment to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Cash Flow Credit Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of (A) letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business, or (B) letters of credit issued in favor of the Issuing Bank pursuant to arrangements designed to eliminate the Issuing Bank’s risk with respect to a Defaulting Lender’s participation in Letters of Credit as contemplated by Section 2.05(a);
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums premiums, or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (ix) Indebtedness consisting of Permitted Additional Debt and Permitted Refinancing Indebtedness in respect thereof, and (y) any Indebtedness of the type described in Section 6.01(i) without giving effect to the cap set forth therein, so long as (i) no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom, and (ii) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Total Net First Lien Leverage Ratio on a Pro Forma Basis, is 2.00 Basis shall not be greater than 3.50 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million1.00;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the in an aggregate amount not to exceed $50.0 million outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04any time;
(t) unsecured Indebtedness 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 so long as services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in connection with Permitted Receivables Financings; provided that after giving effect to such Indebtedness the ordinary course of business from customers for goods and services purchased Borrower shall be in the ordinary course of businesscompliance with Section 2.11(b);
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents[Reserved];
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower and the Subsidiaries incurred under lines of credit or any Parent Entity permitted overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by Section 6.06one or more financial institutions reasonably acceptable to the Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”);
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business[reserved];
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes Additional Refinancing Debt and any Permitted Refinancing Indebtedness in respect thereof; and
(ccaa) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbz) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Sources: Credit Agreement (Verso Paper Corp.)
Indebtedness. IncurThe Borrower will not, create and will not permit any Restricted Subsidiary to, create, incur, assume or assume permit to exist any Indebtedness, exceptIndebtedness other than:
(a) any Specified Indebtedness listed existing on the Effective Date and disclosed on Schedule 6.01(a) 6.01 to the Disclosure Letter and any Permitted Refinancing Indebtedness in with respect thereofthereto;
(b) Indebtedness created hereunder or under to the other Loan Documents, Credit Agreement Refinancing extent constituting Specified Indebtedness, Specified Indebtedness created under Incremental Revolving Commitments consisting of cash management services, including treasury, depository, overdraft, credit or debit card, purchasing cards, electronic funds transfer and other cash management arrangements of Borrower or any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessSubsidiary;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Specified Indebtedness in respect of performance bonds, bid bonds, appeal performance bonds, surety bonds and completion guarantees and similar obligations, in each case, provided incurred by Borrower or any of its Restricted Subsidiaries in the ordinary course of business, including those incurred guarantees or obligations with respect to secure healthletters of credit supporting such bid bonds, safety performance bonds, surety bonds and environmental obligations similar obligations;
(d) Specified Indebtedness representing the financing of insurance premiums in the ordinary course of business;
(ie) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) that is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Specified Indebtedness; provided that at the time and Guarantees of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such guaranteed Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Section 6.01; provided, that if the Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly being guaranteed is unsecured and/or subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)Obligations, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) Guarantee shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior also be unsecured and/or subordinated to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
Obligations. (tf) unsecured Specified Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods constituting Capital Lease Obligations and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Purchase Money Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in provided that the event that an item aggregate principal amount of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.this clause (f) shall not exceed $250,000,000 at any time outstanding;
Appears in 1 contract
Sources: Revolving Credit Agreement (Uber Technologies, Inc)
Indebtedness. Incur, create create, assume or assume cause to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default Indebtedness existing on the Closing Date (provided that any such Indebtedness that is (x) not intercompany Indebtedness and (y) in excess of $3,000,000 individually or Event in excess of Default has occurred and is continuing or would result from $10,000,000 in the incurrence of such Indebtednessaggregate shall be set forth on Schedule 6.01), other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Parent Borrower or any Subsidiary);
(eb) Indebtedness created hereunder (including pursuant to Section 2.19) and under the other Loan Documents;
(c) Indebtedness of the Parent Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Parent Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of the Parent Borrower to any Subsidiary and of any Subsidiary to the Parent Borrower or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiariesany other Subsidiary; provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) such Indebtedness shall be subordinated to the Obligations pursuant under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J or on substantially identical subordination terms or on other subordination terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent (at the direction of the Required Lenders) and the Borrowers;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services services, in each case entered into in the ordinary course of business;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date (including any Exempted Subsidiary at such time as it becomes a Subsidiary) or a person merged, amalgamated or consolidated with the Parent Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise assumed by the Parent Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition; provided, in each casemerger, (1) no Event of Default shall have occurred amalgamation or consolidation), where such acquisition, merger, amalgamation or consolidation is not prohibited by this Agreement and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness was not incurred in contemplation of such acquisition, merger, amalgamation or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness consolidation and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause ;
(i) above (A) Indebtedness in respect of retail store lease obligations and after giving effect thereto), the aggregate outstanding amount of (B) Capitalized Lease Obligations and other Indebtedness incurred under this Section 6.01(i) together with by the Parent Borrower or any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease lease, construction, installation, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, repair, replacement or improvement, in an aggregate outstanding principal amount that is immediately after giving effect to the subject incurrence of such Indebtedness and (ii) the Remaining Present Value use of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each casethereof, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) together with the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debtother Indebtedness outstanding pursuant to this Section 6.01(i)(B), in each case permitted would not exceed the greater of (x) $75,000,000 and (y) 1.50% of Consolidated Total Assets;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Term Loan Credit Agreement as in effect on Parent Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction, together with the Closing Date aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(j), would not exceed the greater of (x) $100,000,000 and (y) 2.00% of Consolidated Total Assets and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject of the foregoing;
(k) Indebtedness of the Parent Borrower or any Subsidiary, in an aggregate outstanding principal amount that, immediately after giving effect to the ABL/Term incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of (x) $50,000,000 and (y) 1.00% of Consolidated Total Assets; provided, further, that any such Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Intercreditor Agreement Party, together with any Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Party pursuant to Section 6.01(x) or 6.01(aa), does not exceed at any time outstanding the greater of (x) $100,000,000 and (y) 2.00% of Consolidated Total Assets;
(i) Indebtedness of the Parent Borrower or any Subsidiary in an aggregate outstanding principal amount, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(l), not greater than 100% of the amount of net cash proceeds received by the Parent Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in the each case of Term Loan Obligations(x) and (y), other than proceeds from the sale of Equity Interests to, or other intercreditor agreement(s) substantially consistent with and no less favorable contributions from, the Parent Borrower or any of its Subsidiaries), to the Lenders in any material respect than extent such net cash proceeds do not constitute Excluded Contributions or increase the ABL/Term Loan Intercreditor AgreementCumulative Credit, as applicable, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(m) Guarantees (i) by the Parent Borrower or any Subsidiary Loan Party of any Indebtedness of the Parent Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iiiii) by the Parent Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 and (other than Section 6.04(t)); (iviii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t))Party; provided that Guarantees by the Parent Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(on) Indebtedness arising from agreements of the Parent Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligationsobligations (including earn-outs), in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment other Investments or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all Agreement or any portion of such business, assets or Subsidiaries for a transaction consummated prior to the purpose of financing any such Permitted Business AcquisitionClosing Date;
(po) Indebtedness supported by a Letter in respect of Creditletters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in a respect of other Indebtedness) in the ordinary course of business;
(i) Indebtedness of the Parent Borrower and the Subsidiary Loan Parties in an aggregate principal amount not to exceed at the time of incurrence the Incremental Amount available at such time; provided that (A) the incurrence of any Indebtedness pursuant to this clause (p)(i) shall be subject to the requirements applicable to Incremental Term Loans (with all references therein to “Incremental Term Loans” deemed a reference instead to “Pari Debt”) set forth in Sections 2.19(b)(iii) (other than with respect to bona fide revolving credit facilities), (iv) (other than with respect to bona fide revolving credit facilities), (vi), (vii) (other than with respect to bona fide revolving credit facilities) and (viii), (B) the incurrence of any Indebtedness for borrowed money in the form of (x) term loans, (y) bonds or (z) revolving credit facilities in an aggregate committed amount in excess of $250,000,000, in each case incurred within twenty-four (24) months of the stated amount Closing Date that are secured by Liens on the Collateral that are Other First Liens shall be subject to the MFN Protection (with all references therein to “Incremental Term Loans” deemed a reference instead to “Pari Debt”) and (C)(i) in the case of such Letter Indebtedness secured by Liens on the Collateral that are (or are intended to be) junior in priority to the Liens on the Collateral securing the Obligations, such Liens shall be subject to a Permitted Junior Intercreditor Agreement and (ii) in the case of Creditsuch Indebtedness secured by Liens on the Collateral that are (or are intended to be) pari passu with the Liens on the Collateral securing the Obligations, such Liens shall be subject to a Permitted Pari Passu Intercreditor Agreement; and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(q) Indebtedness incurred in the ordinary course of business in respect of obligations of the Parent Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(r) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Parent Borrower (or, to the extent such work is done for the Parent Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(s) obligations in respect of Cash Management Agreements incurred in the ordinary course of business;
(t) [reserved];
(u) Indebtedness issued by the Parent Borrower or any Subsidiary to current or former officers, directors and employees thereof or any Parent Entity, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower or any Parent Entity permitted by Section 6.06;
(v) Indebtedness of the Parent Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Parent Borrower and its Subsidiaries;
(w) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(rx) (i) so long as no Default or Event Indebtedness of Default has occurred and is continuing or would result from Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such IndebtednessIndebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness so long as outstanding pursuant to this Section 6.01(x), would not exceed the Fixed Charge Coverage Ratio, greater of (x) $50,000,000 and (y) 1.00% of Consolidated Total Assets on a Pro Forma BasisBasis for the then most recently ended Test Period; provided, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) further, that any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)Indebtedness, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts Indebtedness incurred under by a Subsidiary that is not a Subsidiary Loan Party pursuant to Section 6.01(i6.01(k) or 6.01(aa), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed at any time outstanding the greater of (x) $50.0 million100,000,000 and (y) 2.00% of Consolidated Total Assets;
(s) (iy) Indebtedness consisting of Foreign Subsidiaries and obligations of the Parent Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder;
(iiz) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the ventures in an aggregate outstanding principal amount of Indebtedness incurred pursuant outstanding that, immediately after giving effect to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(z), would not exceed the greater of (x) $50,000,000 and (y) 1.00% of Consolidated Total Assets;
(i) $45.0 million Indebtedness of the Parent Borrower or any Subsidiary so long as immediately after giving to the incurrence of such Indebtedness and to the use of the proceeds thereof, the Consolidated Fixed Charge Coverage Ratio is no less than 2.00 to 1.00 calculated on a Pro Forma Basis for the then most recently ended Test Period and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; andprovided that any such Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Party, together with any Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Party pursuant to Section 6.01(k) or 6.01(x), does not exceed at any time outstanding the greater of (x) $100,000,000 and (y) 2.00% of Consolidated Total Assets;
(i) Indebtedness under the Farm Credit Canada Facility up to a maximum aggregate principal amount of $40,000,000; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(cc) all premium (if any, including tender premiums)) expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bbaa) above or refinancings thereof; and
(i) unsecured Indebtedness owing by any Loan Party to a Captive Insurance Subsidiary in an amount not to exceed the Investments made by the Parent Borrower and its Subsidiaries in such Captive Insurance Subsidiary from and after the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness. For purposes of determining compliance with this Section 6.016.01 or Section 6.02, the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date on which such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), accrued interest, defeasance costs and other costs and expenses incurred in connection with such refinancing. For Further, for purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.t
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtednessthe Additional Term Loan Facility, the Permitted Senior Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedge Agreements other than for speculative purposesSwap Agreements;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt[Reserved];
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries or between and among Restricted SubsidiariesBorrower; provided provided, that (i) Indebtedness of any Subsidiary owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is shall, to the greatest extent permitted by applicable law, be subordinated to the Obligations pursuant on substantially the same terms as intercompany loans are required to customary subordination provisionsbe subordinated under the credit agreement for the Additional Term Loan Facility;
(g) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ih) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Capital Lease Obligations or other obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Leaseback Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness incurred in respect thereof;
(j) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger, consolidation or amalgamation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger, consolidation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed amalgamation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided provided, that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (iA) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement no Default or Event of Default shall have occurred and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions be continuing or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million would result therefrom and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (iiB) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause paragraph (lj) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 75 million and (ii) 9.02.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mk) Capital Lease Obligations, mortgage financings and purchase money Indebtedness consisting incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective property (i) Term Loan Obligations in an aggregate principal amount not in excess real or personal, and whether through the direct purchase of (A) $625.0 million plus (B) property or the aggregate principal amount Equity Interests of any Incremental Term Loans person owning such property) permitted under this Agreement in order to finance such acquisition, lease or Incremental Equivalent Term Debtimprovement, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject thereof; provided, that, if immediately after giving effect to such transaction, the Total Net Secured Leverage Ratio of the Borrower on a Pro Forma Basis would be greater than 5.00:1.00, then the amount of Indebtedness incurred pursuant to this paragraph (k), when combined with the Remaining Present Value of outstanding leases permitted under Section 6.03, shall not exceed the greater of $75 million and 2.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the ABL/Term Loan Intercreditor Agreement date of such incurrence for which financial statements have been delivered pursuant to Section 5.04; provided, further, that any lease arrangements that are not (or, if entered into after the Closing Date, would not have been) Capital Lease Obligations as of the Closing Date but subsequently become Capital Lease Obligations whether as a result of (x) any changes in GAAP or (y) any changes in the case terms of Term Loan Obligationssuch arrangements required in connection with the ordinary course renewal or extension thereof, shall not constitute Capital Lease Obligations hereunder or for any other provision of this Agreement;
(l) or [Reserved];
(m) intercompany loans and advances from the Borrower to Claire’s Stores;
(n) other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $100 million and 3.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(o) Guarantees (i) by the Borrower of any indebtedness or obligations of the Borrower permitted to be incurred under this Agreement, (iiiii) by the Borrower of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iii) by any Subsidiary of Indebtedness of another Subsidiary and (iv) by any Restricted Subsidiary that is not a Loan Party the Borrower of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(z) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by the Borrower or any other Loan Party under this clause (nSection 6.01(o) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinatedObligations;
(op) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Creditacquisition;
(q) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(r) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(ut) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(u) Indebtedness in connection with Permitted Receivables Financings;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business[Reserved];
(w) Indebtedness consisting incurred on behalf of, or representing Guarantees of reimbursement obligations related to bank guarantees Indebtedness of, joint ventures not in excess, at any one time outstanding, of the greater of $25 million or 1.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the extent that date of such obligations are collateralized by cash or cash equivalentsincurrence for which financial statements have been delivered pursuant to Section 5.04;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by Indebtedness consisting of obligations of the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(i) Other Indebtedness incurred by the Borrower; provided that (A) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom; and (B) (x) the Fixed Charge Coverage Ratio of the Borrower for the 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 would have been at least 2.00:1.00 determined on a Pro Forma Basis, as if the additional Indebtedness had been incurred and the application of proceeds therefrom had occurred at the beginning of such four quarter period, and (ii) Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(aa) unsecured Indebtedness of Subsidiaries (other than Indebtedness owed to the Borrower or another Subsidiary) in a principal an aggregate amount not to exceed an amount equal to at any time outstanding the Net Cash Proceeds received from greater of $50 million and 1.5% of Consolidated Total Assets at the issuance or sale time of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Dateincurrence;
(bb) Indebtedness of (x) the Borrower or any Subsidiary incurred to finance an acquisition or (y) Persons that are being acquired by the Borrower or any Subsidiary or merged, consolidated or amalgamated with or into the Borrower or any Subsidiary in respect accordance with the terms of Senior Unsecured Notes and any Permitted Refinancing this Agreement; provided, that after giving effect to such acquisition or merger, consolidation or amalgamation, either (A) the Borrower would be permitted to incur at least $1.00 of additional Indebtedness in respect thereofunder Section 6.01(z) or (B) the Fixed Charge Coverage Ratio of the Borrower would be equal to or greater than immediately prior to such acquisition or merger, consolidation or amalgamation; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bb) of this Section 6.01above. For purposes of determining compliance with this Section 6.01, :
(A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (Bi) in the event that an item of Indebtedness Indebtedness, Disqualified Stock or Preferred Stock (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category one or more of Permitted the categories of permitted Indebtedness described in Section 6.01 clauses (other than Sections 6.01(a), a) through (b), (my) or (bb))above, the Borrower mayshall, in its sole discretion, reclassify classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner and at any time that complies with this Section 6.01; and
(ii) the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date that such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such item refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of Indebtedness such refinancing, such Dollar-denominated restriction shall be treated deemed not to have been exceeded so long as having been the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred or existing pursuant to in connection with such other clauserefinancing.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any (i) Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary of the Borrower);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower and its Relevant Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.12;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any Relevant Subsidiary of the other Restricted Subsidiaries Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of businessPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower and or any Relevant Subsidiary owing to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is extent permitted under by Section 6.04(b) and (ii) 6.04, provided that Indebtedness owing by the Borrower or of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligationsobligations (including, without limitation guarantees of the West Virginia Department of Highways Bonds described on Schedule 3.13 to the Acquisition Agreement or similar highway bonds), in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Relevant Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Relevant Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger, amalgamation or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger, amalgamation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; , provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect theretoto, such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), the aggregate outstanding amount paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), would not exceed the greater of (i) U.S. $100.0 15.0 million and (ii) 7.05.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable, for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that ;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Borrower or any Relevant Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of such Indebtedness this Section 6.01, this paragraph (i) and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k6.03) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) U.S. $150.0 15.0 million and (ii) 9.05.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Indebtedness consisting Capital Lease Obligations incurred by the Borrower or any Relevant Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(ik) Term Loan Obligations other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(k) not in excess of (A) the greater of U.S. $625.0 15.0 million plus (B) the aggregate principal amount and 5.5% of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessConsolidated Total Assets;
(nl) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as by any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iiiii) by the Borrower or any Relevant Subsidiary of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 6.04, (other than Section 6.04(t)); (iviii) by any Restricted Relevant Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (viv) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(k) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)p); provided that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(om) Indebtedness arising from agreements of the Borrower or any Relevant Subsidiary of the other Restricted Subsidiaries Borrower providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(pn) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(qo) Indebtedness consisting of Relevant Subsidiaries that are Foreign Subsidiaries (iincluding letters of credit or bank guarantees (other than Revolving Letters of Credit issued pursuant to Section 2.05) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, for working capital purposes incurred in the ordinary course of businessbusiness on ordinary business terms in an aggregate amount not to exceed the greater of U.S. $5.0 million and 1% of Consolidated Total Assets outstanding at any time);
(rp) (i) so long as no Default or Event of Default has occurred and is continuing or would result from Indebtedness incurred and/or assumed in connection with Section 6.04(j); provided that the incurrence aggregate amount of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 outstanding pursuant to 1.00 or greater (“Ratio Debt”this Section 6.01(p) shall not exceed U.S. $20.0 million and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofIndebtdness; and
(ccq) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbq) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations case in the ordinary course of business;
(ie) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that, other than in respect the case of Cash Management Services intercompany current liabilities incurred in the ordinary course of businessbusiness in connection with the cash management operations of Holdings and the subsidiaries to finance working capital needs of the subsidiaries, (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) other Indebtedness of the Borrower to any Subsidiary that is not a Subsidiary Loan Party shall, if legally permissible, be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness (including obligations in respect of letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and completion guarantees provided by the Borrower or any of its Subsidiaries in the ordinary course of business or consistent with past practice or industry practice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or of an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisitionthe acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger, consolidation or amalgamation is permitted by this Agreement; provided, in each case, (1A) no Default or Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result therefrom, and (B) immediately after giving pro forma effect to such Permitted Business Acquisition acquisition, merger, consolidation or amalgamation, the assumption and incurrence of any Indebtedness and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect shall not be greater than 4.25 to such incurrence or assumption of Indebtedness 1.00 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause ;
(i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect by the Borrower or any Subsidiary prior to installationsor within 270 days after the construction, repairsacquisition, lease or improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financingsthe respective property (real or personal, and Indebtedness with respect whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to additions finance such construction, acquisition, lease or improvements to Real Property improvement, in an aggregate outstanding principal amount not to exceed, that at the time of incurrence of such Indebtedness (of, and after giving effect thereto)to, and the incurrence thereof, together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03, would not exceed the greater of (i) $100.0 550.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.05.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) 5.04 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capital Lease Obligations incurred to Refinance such Ratio Debt; provided by the Borrower or any Subsidiary in respect of any Sale and Lease‑Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (of, and after giving effect thereto)to, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i)incurrence thereof, in each case, by Restricted Subsidiaries that are not Guarantors does would not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 550.0 million and (ii) 2.505.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes 5.04 and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference incurred to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under Refinance any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.Indebtedness;
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrowers or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrowers or any Subsidiary pursuant to Swap Agreements permitted by Section 6.12;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Borrowers or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of the Borrowers to Holdings or among any Subsidiary and of any Subsidiary to Holdings, the Borrower and the Restricted Subsidiaries Borrowers or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower Borrowers to Holdings or any Subsidiary and Indebtedness of any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party is shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received to the obligor by the Borrower such bank or other financial institution of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrowers or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the aggregate amount of Indebtedness outstanding pursuant to this paragraph (h) and paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03, ) would not exceed the greater of (i) $100.0 75.0 million and (ii) 7.04% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger or consolidation, such assumption or such incurrence, as applicable for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04; provided, further (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger or consolidation, the assumption and incurrence of any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that and any related transactions, the Borrowers shall be in Pro Forma Compliance;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Borrowers or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof, together with the aggregate amount of such Indebtedness outstanding pursuant to this paragraph (i) and paragraph (iih) of this Section 6.01 and the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case6.03, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 75.0 million and (ii) 9.04% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Capital Lease Obligations incurred by the Borrowers or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness consisting of (i) Term Loan Obligations the Borrowers or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $100.0 million and 5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Borrowers pursuant to (i) the Senior Unsecured Notes in an aggregate principal amount that is not in excess of $485.0 million, (A) $625.0 million plus (Bii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of any Incremental Term Loans or Incremental Equivalent Term Debt$300.0 million, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower Borrowers described in clause paragraph (m1) of this Section 6.01 6.01, so long as any Liens securing the Term Loan Obligations Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof are subject is subordinated substantially on terms as set forth in the Senior Subordinated Notes Indenture with respect to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicableSenior Subordinated Notes, (ii) by the Borrowers or any Subsidiary Loan Party of any Indebtedness of the Borrower Borrowers or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrowers or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Foreign Subsidiary, and (v) by the Borrowers of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that Guarantees by Borrower the Borrowers or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of Borrower the Borrowers or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) Indebtedness consisting of Permitted Ratio Debt and Permitted Refinancing Indebtedness in respect thereof so long as (i) so long as no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom, (ii) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Total Senior Secured Bank Leverage Ratio on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and Basis after giving effect thereto)to such Indebtedness shall not be greater than 4.50 to 1.00 and (iii) the proceeds of such Permitted Ratio Debt are used to fund Permitted Business Acquisitions, the aggregate outstanding amount to repay Term Loans or to repay any Indebtedness of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionBorrower or any Subsidiary Loan Party;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the are not Subsidiary Loan Parties in an aggregate amount not to exceed $75.0 million outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04any time;
(t) unsecured Indebtedness in respect of obligations of the Borrowers or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrowers or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in connection with Permitted Receivables Financings; provided that the ordinary course of business from customers for goods and services purchased proceeds thereof are applied in the ordinary course of businessaccordance with Section 2.11(b);
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrowers and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent Administrative Agent or one or more of the Lenders and (in each case) established for the Borrowers’ and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and in the Security Documents (it being understood, however, that such obligations are collateralized by cash or cash equivalentsfor a period of 30 consecutive days during each fiscal year of the Borrowers the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed $10.0 million);
(x) intercompany Indebtedness consisting of promissory notes issued by in connection with the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06Restructuring Transactions;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbx) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Sources: Credit Agreement (Rexnord Corp)
Indebtedness. IncurBorrower shall not create, create incur, assume or assume guaranty, or otherwise become or remain liable with respect to any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereofthe Obligations;
(b) Indebtedness created hereunder or under of Borrower to any Subsidiary of Borrower; provided all such Indebtedness shall be unsecured and subordinated in right of payment to the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any payment in full of the foregoing IndebtednessObligations pursuant to the terms of the applicable promissory notes or an intercompany Subordination Agreement that, in any such case, is reasonably satisfactory to Administrative Agent;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of or purchase or acquisition price or similar obligations, in each caseor from guaranties or letters of credit, incurred surety bonds or assumed performance bonds securing the performance of Borrower pursuant to such agreements, in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisitions or the disposition permitted dispositions of any business, assets or Subsidiaries not prohibited by this Subsidiary of Borrower; Tiptree Credit Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(pd) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 which may be deemed to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness exist pursuant to clause (i) above (and after giving effect thereto)any bid, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i)performance, in each casesurety, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf ofbond, statutory, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of appeal bonds or similar guaranties or other obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(ve) Indebtedness arising from customer deposits in respect of netting services, overdraft protections and advance payments received otherwise in connection with Deposit Accounts, credit cards, merchant cards or debit cards;
(f) guaranties in the ordinary course of business from customers for goods of the obligations of suppliers, customers, franchisees, lessors and services purchased in the ordinary course licensees of businessBorrower and its Subsidiaries;
(wg) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash arising under Interest Rate Agreements or cash equivalentscurrency swap agreements;
(xh) Indebtedness consisting the financing of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06insurance premiums;
(yi) Guarantees by the Borrower or any other Restricted Subsidiary Subordinated Indebtedness of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of businessBorrower;
(zj) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of Permitted Refinancing with respect to the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;foregoing; and
(aak) unsecured other Indebtedness of Borrower in a an aggregate principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or $5,000,000 at any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausetime outstanding.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed for borrowed money existing on the date hereof and set forth in Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof6.01;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposesthe Senior Discount Notes;
(d) Indebtedness of the Borrower to any Wholly Owned Subsidiary and of any Wholly Owned Subsidiary (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on than a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insuranceLicense Subsidiary) to the Borrower or any other Wholly Owned Subsidiary;
(e) Guarantees by the Borrower of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course Indebtedness of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrenceany Wholly Owned Subsidiary;
(f) intercompany Indebtedness between or among consisting of obligations of Telemundo of Chicago, Inc. and Video 44 Acquisition Corp., Inc., each a Wholly Owned Subsidiary, existing on the Borrower and date hereof under the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Chicago Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisionsPartnership Agreement;
(g) Indebtedness of the Borrower or any of its subsidiaries (other than a License Subsidiary) consisting of (i) Capital Lease Obligations and (ii) purchase money obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligationsreal property or equipment, in each case, provided either case incurred in the ordinary course of businessbusiness after the Closing Date, including those and extensions, renewals and replacements of such Capital Lease Obligations or purchase money obligations; provided that the aggregate principal amount of the Capital Lease Obligations, purchase money obligations and extensions, renewals and replacements thereof incurred pursuant to secure healththis clause (g) and outstanding at any time shall not exceed $15,000,000;
(h) Subordinated Indebtedness of the Borrower or the Parent not prohibited by any other provision of this Agreement;
(i) Indebtedness of the Borrower created under Hedging Agreements required under Section 5.10 or entered into in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities;
(j) obligations that constitute Indebtedness incurred, safety assumed or guaranteed in the ordinary course of business under any Local Marketing Agreement; provided, that the outstanding principal amount of any Indebtedness incurred, assumed or guaranteed by the Parent, the Borrower or any Subsidiary pursuant to any Local Marketing Agreement, together with the aggregate amount of investments referred to in Section 6.04(g), shall not exceed $10,000,000 at any time;
(k) Indebtedness of any subsidiary of the Borrower that existed at the time such person became a subsidiary of the Borrower and environmental obligations that were not incurred in contemplation of the acquisition by the Borrower or a Subsidiary of such person;
(l) Indebtedness in respect of bid, performance and surety bonds furnished by the Borrower and its subsidiaries in the ordinary course of business;
(im) Extensions, renewals and replacements of Indebtedness permitted under clauses (a), (c), (f) and (k) above to the extent the principal amount of such Indebtedness is not increased, the weighted average life to maturity of such Indebtedness is not decreased, such Indebtedness, if subordinated to the Obligations, remains so subordinated on terms not less favorable to the Lenders and the original obligors in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by remain the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;only obligors thereon; and
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(ln) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations Borrower in an aggregate principal amount not in excess of (A) exceeding $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause20,000,000.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
: (a) any Indebtedness listed existing on the Amendment No. 67 Effective Date and set forth on Schedule 6.01(a) 7.01 and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with such Borrower or any Subsidiary); (b)
(ei) Indebtedness created hereunder and under the other Loan Documents and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; and (ii) Guarantees by the Borrowers and the Material Subsidiaries of Indebtedness of Ultimate Parent, Parent Guarantor or any Subsidiary thereof; (c) obligations (contingent or otherwise) arising under a Swap Contract if such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates, commodity prices or foreign exchange rates (or to allow any customer to do so); provided, however, to the extent that such Indebtedness is incurred under a Secured Hedge Agreement, such Secured Hedge Agreement was entered 130 into in connection with the execution of customer contracts to hedge currency and commodity risk thereunder; (d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the any Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
; (fe) intercompany unsecured Indebtedness between or among of any Borrower to the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by Ultimate Parent, any Restricted Subsidiary of Ultimate Parent or any Subsidiary and of any Subsidiary to Ultimate Parent, any Subsidiary of Ultimate Parent, the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower Borrowers or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness Subsidiary; provided that, except in respect of 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 intercompany current liabilities incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such in connection with the cash management operations among Ultimate Parent and its subsidiaries, Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or of any other Loan Party to any Person incurred under this clause (ne) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the ABL Credit Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior terms reasonably satisfactory to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04Administrative Agent;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Credit Agreement (Constellium Se)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiaryany Covenant Party);
(b) Indebtedness created hereunder or (and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness);
(c) Indebtedness of the Borrower or any Subsidiaryany Covenant Party pursuant to Hedge Hedging Agreements other than for speculative purposespermitted by Section 6.11;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiaryany Covenant Party, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of (i) any Subsidiary Loan Party to the Borrowera First Tier Covenant Party or among any other Subsidiary, (ii) the Borrower and Borrowera First Tier Covenant Party to any Subsidiary Loan Party or any other First Tier Covenant Party or (iii) any Subsidiary other than a Subsidiary Loan Party to the Restricted Subsidiaries Borrowera First Tier Covenant Party or between and among Restricted Subsidiariesany other Subsidiary; provided that (iA) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party pursuant to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(bclauses (i) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is of this Section 6.01(e) shall be unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent and the Required Lenders and (B) Indebtedness pursuant to customary subordination provisionsclause (iii) of this Section 6.01(e) shall be subject to Section 6.04(a);
(gf) Indebtedness (including obligations in respect of letters of credit, in an amount not to exceed, in the aggregate with the Indebtedness under Section 6.01(k) and Section 6.01(m)(A) below, $20.025.0 million outstanding at any time) in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including (x) those incurred to secure health, safety and environmental obligations in the ordinary course of business, so long as the underlying obligations with respect to any of the foregoing are not Indebtedness for borrowed money and (y) those intended to secure a Guarantee permitted under Section 6.01(k);
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds or obligations under Cash Management Agreements, so long as in each case in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after of notification is received by to the Borrower or other applicable Loan Party or Subsidiary of its incurrence incurrence, and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(h) [reserved];
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiaryany Covenant Party prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of any property (real or personal and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance the acquisition, lease or improvement of such property, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate outstanding principal amount that at the time of, and after giving effect to, the incurrence thereof would not exceed $65.0 million; provided that any such Indebtedness (i) shall be secured only by the property that is acquired or improved (and any related property and assets subject to a common financing program of the subject type permitted under this Section 6.01(i)) in connection with the incurrence of such Indebtedness and proceeds, improvements and replacements thereof, and (ii) shall constitute not more than 100% of the Remaining Present Value aggregate consideration paid with respect to such property or improvement (and any related property subject to a common financing program of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness the type permitted under this clause Section 6.01(i));
(j) Capital Lease Obligations incurred by the Borrower or permitted any Subsidiaryany Covenant Party in respect of any Sale and Lease-Lease Back Transactions Transaction that is permitted under Section 6.03 if the proceeds of the related Sale 6.03, and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments Permitted Refinancing Indebtedness in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) [Reserved]reserved];Guarantees by any Covenant Party (including any Indebtedness in respect of letters of credit, bank guarantees or similar instruments to secure such Guarantees) in an amount not to exceed, in the aggregate with the Indebtedness under Section 6.01(f) above and Section 6.01(m)(A) below, $25.0 million outstanding at any time in respect of obligations of Verso Corporation under any arrangement where Verso Corporation procures products or services used in the ordinary course of business of the Loan Parties, to the extent such products or services are procured solely for the benefit of the Loan Parties and are received directly by the applicable Loan Parties, and no compensation is paid to Verso Corporation other than amounts that are used to pay the acquisition cost of such products or services to the providers thereof;
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) by Holdings, the Borrower, any other First Tier Covenant Party or any Subsidiary Loan Party of the Indebtedness of Holdings, the Borrower Borrower, any other First Tier Covenant Party or any Subsidiary Loan Party described in clause (m) of this Section 6.01 6.01(u), so long as any the Liens securing the Term Loan Obligations Guarantee of such obligations (or any Permitted Refinancing Indebtedness in respect thereof thereof) are subject to the ABL/Term Loan ABL Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(sapplicable Intercreditor Agreement to which the Liens securing such Indebtedness described in Section 6.01(u) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicableare subject, (ii) by Holdings, the Borrower, any other First Tier Covenant Party or any Subsidiary Loan Party of any Indebtedness of Holdings, the Borrower Borrower, any other First Tier Covenant Party or any other Subsidiary Loan Party permitted to be incurred under this AgreementSection 6.01, (iii) of Indebtedness otherwise permitted hereunder of by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party and (iv) of Indebtedness otherwise permitted hereunder of Subsidiaries that are not Loan Parties to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv6.04(i) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under or Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(s)); provided that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person that is subordinated in right of payment to other Indebtedness of such person shall be expressly subordinated in right of payment to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(om) Indebtedness in respect of (A) letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business (including those constituting a Guarantee permitted under Section 6.01(k)), in an amount not to exceed, in the aggregate with the letters of credit permitted under Section 6.01(f) and guarantees permitted under Section 6.01(k) above, $20.025.0 million outstanding at any time, or (B) letters of credit issued in favor of a swingline lender or an issuing bank under the ABL Credit Agreement pursuant to arrangements designed to eliminate such swingline lender’s or issuing bank’s risk with respect to a defaulting lender’s participation in swingline loans or letters of credit, respectively, under the ABL Credit Agreement (including as contemplated by Section 2.05(a) thereof);
(n) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiaryany Covenant Party providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(qo) Indebtedness consisting of (i) the financing of insurance premiums premiums, or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(rp) (i) so long as no Default or Event Indebtedness of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does Subsidiary Loan Parties in an aggregate amount not to exceed $50.0 millionmillion outstanding at any time;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(tq) unsecured Indebtedness in respect of obligations of the Borrower or any Subsidiaryany Covenant Party to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money money, cash management services or any Hedge Hedging Agreements;
(ur) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiaryany Covenant Party incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aai) unsecured Indebtedness in a an aggregate principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or $50.0 million at any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) time outstanding so long as immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis shall not be greater than 3.50 to 1.00; provided that the incurrence of any such Indebtedness matures at least 91 days after shall be subject to the Maturity Date;
last paragraph of this Section 6.01, and (bbii) Permitted Refinancing Indebtedness in respect of Senior Unsecured Notes any of the foregoing;
(t) [reserved];
(i) Indebtedness under the ABL Loan Documents (or under any other debt instrument with availability subject to a borrowing base formula) in an aggregate principal amount of up to $375.0 million as of the Closing Date (determined without reference to Hedging Agreements that are entered into in compliance with Section 6.11 hereof and constitute “Secured Hedging Agreements” under the ABL Credit Agreement (as in effect on the ClosingAmendment One Effective Date without giving effect to any further amendment, modification or waiver thereof), which amount may be increased by (x) an additional principal amount of up to $25.0 million after the Closing Date, plus (y) subject to compliance on a Pro Forma Basis with a Total Net First Lien Leverage Ratio (determined as if all commitments under the ABL Facility shall be deemed drawn) of 1:00 to 1:00, an additional principal amount of up to $50.0 million after the Closing Date after giving effect to any increase pursuant to subclause (x) above and (ii) any Permitted Refinancing Indebtedness in respect thereofof Indebtedness otherwise permitted under this Section 6.01(u); provided that the foregoing Indebtedness shall be subject to the applicable Intercreditor Agreement (if secured) and no such Indebtedness shall be subject to any payment subordination arrangements; and
(ccv) all premium premiums (if any, including tender premiums), defeasance costs, interest (including post-petition interestinterest but not, for the avoidance of doubt, accrued interest accreted to principal), fees, expenses, charges and additional or contingent interest on obligations described in clauses (aSections 6.01(a) through (bbu) above. For purposes of determining compliance with this Section 6.01, the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date on which such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that, if such Indebtedness is permitted hereby and is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced, plus (ii) to the extent payment of the following is not prohibited by this Agreement, the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing. For Further, for purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted permitted Indebtedness described in Section Sections 6.01(a) through Section 6.01(cc(v) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category one or more of Permitted the categories of permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), ) through (b), (m) or (bb)v), the Borrower mayshall, in its sole discretion, reclassify classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 and will only be required to include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses and such item of Indebtedness shall be treated as having been incurred or existing pursuant to only one of such other clauseclauses; provided that all Indebtedness under this Agreement outstanding on the Closing Date shall at all times be deemed to have been incurred pursuant to Section 6.01(b). With respect to any Indebtedness for borrowed money described in Section 6.01(s), (A) the stated maturity date of such Indebtedness shall be no earlier than the Latest Maturity Date in effect at the time such Indebtedness is issued, incurred or assumed (or, in the case of unsecured Indebtedness, 91 days after the Latest Maturity Date in effect at the time such Indebtedness is issued, incurred or assumed) and (B) except in respect of any such Indebtedness incurred under any revolving credit facility, the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of any of the Loans outstanding at the time such Indebtedness is issued, incurred or assumed.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the ClosingEleventh Amendment Effective Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations case in the ordinary course of business;
(ie) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that, other than in respect the case of Cash Management Services intercompany current liabilities incurred in the ordinary course of businessbusiness in connection with the cash management operations of Holdings and the subsidiaries to finance working capital needs of the subsidiaries, (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) other Indebtedness of the Borrower to any Subsidiary that is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall, if legally permissible, be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness (including obligations in respect of letters of credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and completion guarantees provided by the Borrower or any of its Subsidiaries in the ordinary course of business or consistent with past practice or industry practice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or of an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisitionthe acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger, consolidation or amalgamation is permitted by this Agreement; provided, in each case, (1A) no Default or Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result therefrom, and (B) immediately after giving pro forma effect to such Permitted Business Acquisition acquisition, merger, consolidation or amalgamation, the assumption and incurrence of any Indebtedness and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect shall not be greater than 4.25 to such incurrence or assumption of Indebtedness 1.00 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause ;
(i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect by the Borrower or any Subsidiary prior to installationsor within 270 days after the construction, repairsacquisition, lease or improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financingsthe respective property (real or personal, and Indebtedness with respect whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to additions finance such construction, acquisition, lease or improvements to Real Property improvement, in an aggregate outstanding principal amount not to exceed, that at the time of incurrence of such Indebtedness (of, and after giving effect thereto)to, and the incurrence thereof, together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03, would not exceed the greater of (i) $100.0 550.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.05.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.045.04 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(mj) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness consisting in respect thereof;
(k) other Indebtedness of (i) Term Loan Obligations the Borrower or any Subsidiary, in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof, would not in excess exceed the greater of (A) $625.0 550.0 million plus (B) and 5.0% of Consolidated Total Assets as of the aggregate principal amount end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 and any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nl) Indebtedness of the Borrower pursuant to (i) the Senior Unsecured Notes in an aggregate principal amount that is not in excess of $622.02,307.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), (ii) the Senior SubordinatedExchangeable Notes in an aggregate principal amount that is not in excess of $200.0403.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), and (iii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(m) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 6.01(l), so long as any Liens securing the Term Loan Obligations Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof are subject is subordinated on substantially the same terms as set forth in the Senior Subordinated Notes Indenture with respect to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicableSenior Subordinated Notes, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party that is otherwise permitted hereunder to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(b)); , (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) by the Borrower or any Subsidiary Loan Party of Indebtedness of Foreign Subsidiaries that are not Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) and to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)6.04(b); provided provided, that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) and trade letters of credit in the ordinary course of business;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) other Indebtedness incurred by the Borrower or any Subsidiary Loan Party so long as (A) no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom and (B) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Senior Secured Leverage Ratio on a Pro Forma Basis, is 2.00 Basis shall not be greater than 4.25 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionrespect thereof;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the are not Loan Parties in an aggregate amount not to exceed at any time outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 330 million and (ii) 2.503.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, employees and directors and officers of the Borrower or any Subsidiary incurred (i) in the ordinary course of businessbusiness or (ii) in connection with the Transactions (including as a result of the cancellation or vesting of outstanding options and other equity-based awards in connection therewith);
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of businessconnection with Permitted Securitization Financings;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrower and the Subsidiaries incurred under overdraft, lines of credit or cash management facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent that Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such obligations are collateralized by cash or cash equivalentsIndebtedness, the “Cash Management Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and in the Security Documents;
(x) Indebtedness consisting incurred on behalf of, or representing Guarantees of promissory notes Indebtedness of, joint ventures not in excess, at any one time outstanding, of the greater of $550.0 million or 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(y) Indebtedness issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates estates, spouses or family members former spouses to finance the purchase or redemption of Equity Interests of the Borrower Holdings or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date Transactions or and Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used incurred in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used notes and earn-out obligations payable to fund charges, expenses, accruals or reserves sellers in accordance with clause (k) joint ventures and Permitted Business Acquisitions; provided that required payments in respect thereof shall not exceed 40% of the definition amount of “Consolidated Net Income”) so long as Permitted Business Acquisitions for such Indebtedness matures at least 91 days after the Maturity Dateyear;
(bb) Indebtedness in respect of Senior Unsecured Notes Arbitrage Programs in an aggregate principal amount not to exceed the sum of (i) $10.0 million and any (ii) the aggregate amount of Permitted Refinancing Indebtedness in respect thereof; andInvestments related thereto from time to time;
(cc) all premium premiums (if any, including tender premiums, if any), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bb) above;
(dd) Indebtedness of this the Borrower pursuant to (i) the First and a Half Lien Refinancing Notes in an aggregate principal amount that is not in excess of $1,025.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), (ii) the First Lien Notes in an aggregate principal amount that is not in excess of $593.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), and (iii) in each case, any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(ee) Indebtedness pursuant to any First Lien Refinancing Notes; provided that the Borrower shall Refinance Term Loans with an amount not less than the First Lien Net Proceeds of any First Lien Refinancing Notes to the extent required by Section 6.01. For purposes 2.11(g);
(i) Junior Refinancing Indebtedness; provided that (x) 100% of determining compliance the Net Cash Proceeds of such Junior Refinancing Indebtedness must be used only by the Borrower to Refinance all or any portion of the Notes or any other Junior Financing (or all or any portion of any Permitted Refinancing Indebtedness in respect thereof) and (ii) any refinancing, refunding, renewal, replacement, defeasance or extension of any Junior Refinancing Indebtedness; provided that in connection with this Section 6.01any such refinancing, refunding, renewal, replacement, defeasance or extension (in each case, a “refinancing,” with correlatives of such term having a similar meaning), (x) the principal amount of any such refinancing Indebtedness is not greater than the principal amount of the Indebtedness being refinanced outstanding immediately prior to such refinancing (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses relating to such refinancing Indebtedness), (y) such refinancing Indebtedness otherwise complies with the definition of Junior Refinancing Indebtedness and (z) such refinancing Indebtedness is secured on a pari passu basis with or junior to the Indebtedness being refinanced (or, in the event the Indebtedness being refinanced is unsecured, such refinancing Indebtedness shall be unsecured);
(gg) Indebtedness of the Borrower in respect of one or more series of senior unsecured notes or senior secured notes or additional loans that will be secured by all or a portion of the Collateral on a pari passu or junior basis with the Obligations, that are issued or made in lieu of loans under the Incremental Revolving Facility and/or Incremental Term Loans and Permitted Refinancing Indebtedness in respect thereof (the “Additional NotesDebt ”); provided that (A) Indebtedness need such Additional NotesDebt are not be permitted solely by reference scheduled to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and mature prior to the date that is 91 days after the Term B Facility Maturity Date, (B) the aggregate principal amount of all Additional NotesDebt issued pursuant to this clause (gg) shall not exceed (x) $500 million less (y) the aggregate principal amount of all loans under the Incremental Revolving Facility and Incremental Term Loans made after the ClosingEleventh Amendment Effective Date pursuant to Section 2.20 and clause (x) of the definition of “Incremental Amount”, (C) such Additional NotesDebt shall not be subject to any Guarantee by any Subsidiary other than a Loan Party, (D) in the case of Additional NotesDebt that are secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any of its Subsidiaries other than any asset constituting Collateral, (E) if such Additional NotesDebt are secured, the security agreements relating to such Additional NotesDebt shall be substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (F) subject to Section 1.04, no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence (provided that in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.Add
Appears in 1 contract
Sources: Amendment to Credit Agreement (Anywhere Real Estate Group LLC)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; any other Subsidiary, provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, financial assurances and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a corporation merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; , provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect theretoto, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), the aggregate outstanding amount paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), would not exceed the greater of (i) $100.0 40 million and (ii) 7.04.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger or consolidation, such assumption or such incurrence, as applicable, for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that ;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of such Indebtedness this Section 6.01, this paragraph (i) and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k6.03) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) exceed the greater of (i) $150.0 40 million and (ii) 9.04.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness consisting of (i) Term Loan Obligations the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $50 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Borrower pursuant to the Senior Subordinated Notes in an aggregate principal amount that is not in excess of (A) $625.0 275 million plus (B) the aggregate principal amount of and any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause paragraph (m) of this Section 6.01 1), so long as any Liens securing the Term Loan Obligations Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (is subordinated substantially on terms as set forth in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicableSenior Subordinated Note Indenture, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(b)); , (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party Foreign Subsidiary, and (v) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(a) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)s); provided that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Note Indenture;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $15 million;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (ix) the financing of insurance premiums or (iiy) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors Permitted Debt Securities and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and;
(ccs) Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed $50 million outstanding at any time;
(t) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbs) of this Section 6.01. For purposes of determining compliance with this Section 6.01, above and paragraph (Au) below;
(u) Indebtedness need not be permitted solely by reference to one category in connection with Permitted Receivables Financings; provided that the proceeds thereof are applied in accordance with Section 2.11(b);
(v) Cash Management Obligations and other Indebtedness in respect of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof netting services, overdraft protection and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower maysimilar arrangements, in its sole discretioneach case, reclassify such item of Indebtedness in connection with cash management and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausedeposit accounts; and
(w) Junior Capital.
Appears in 1 contract
Sources: Credit Agreement (PQ Systems INC)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any The First Lien Notes, the 1-1/2 Lien Notes, the Second Lien Notes and the other Indebtedness listed existing, or incurred pursuant to facilities existing, on the Closing Date and set forth on Schedule 6.01(a6.01 (provided that any such Indebtedness that is (i) intercompany Indebtedness and (ii) any other Indebtedness in an aggregate amount not to exceed $50.0 million shall be excluded from such Schedule 6.01) and, in each case, any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness or, without duplication, replacements of such facilities that would constitute Permitted Refinancing Indebtedness with respect to such facilities if all Indebtedness available to be incurred thereunder were outstanding on the date of such replacement (other than Permitted Refinancing Indebtedness in respect thereofof intercompany indebtedness of the U.S. Borrower or any Subsidiary owed to the U.S. Borrower or any Subsidiary Refinanced with Indebtedness owed to a person other than the U.S. Borrower or any Subsidiary);
(b) Indebtedness created hereunder or (including pursuant to Section 2.21) and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the U.S. Borrower and the Subsidiaries pursuant to Swap Agreements permitted by Section 6.11;
(d) Indebtedness of the U.S. Borrower and the Subsidiaries owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings (including self-insurance) to until a Qualified IPO), the U.S. Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that that, upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of the U.S. Borrower to any Subsidiary and of any Subsidiary to the U.S. Borrower or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiariesany other Subsidiary; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party owing to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person Parties shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.subject to
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Momentive Specialty Chemicals Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) Indebtedness existing on the Closing Date (provided, that any such Indebtedness listed that is in excess of $2,000,000 shall be set forth on Schedule 6.01(a6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Indebtedness created hereunder or (including pursuant to Section 2.21) and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness business or consistent with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrencepast practice or industry practices;
(fe) intercompany Indebtedness between or among of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing owed by the Borrower or any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Loan Party is shall be unsecured and subordinated to the Loan Obligations pursuant under this Agreement on subordination terms substantially in the form of Exhibit F hereto or on other subordination terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of businessbusiness or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered services, in each case incurred the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of all or substantially all of the assets of, or all or substantially all of the Equity Interests (other than directors’ qualifying shares) not previously held by the Borrower and its Subsidiaries in, or merger, consolidation or amalgamation with, a Permitted Business Acquisitionperson or a division or line of business of a person or a controlling interest in a person (or any subsequent investment made in a person, division or line of business previously acquired in any such acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that (x) in each casethe case of Indebtedness secured by Liens on the Collateral that are pari passu with, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debtsenior to, the Liens on the Collateral securing the Loan Obligations, the Net First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the assumption or incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof) and any related transactions is (I) not greater than 3.50 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (y) in the case of Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Term B Loans, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof) and any related transactions is (I) not greater than 4.50 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto and (z) in the case of unsecured Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof) and any related transactions is (I) not greater than 5.00 to 1.00 or (II) no greater than the Total Net Leverage Ratio in effect immediately prior thereto; provided, further, (A) that the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) (except for any seller note or other seller financing) shall be subject to the last paragraph of this Section 6.01, and (B) any such Indebtedness incurred by any Subsidiary that is not a Guarantor shall not exceed at the time of, and after giving effect to, the incurrence thereof, together with the aggregate principal amount of any other non-Guarantor Indebtedness outstanding pursuant to Section 6.01(l)(i), (r)(i) and (s)(i), the greater of $25,000,000 and 2.5% of Consolidated Total Assets; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause ;
(i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(ii) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof, together with the aggregate amount of such any other Indebtedness outstanding pursuant to this Section 6.01(i), would not exceed the greater of $50,000,000 and 4.5% of Consolidated Total Assets, and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating any Permitted Refinancing Indebtedness under this clause in respect thereof;
(j) Capitalized Lease Obligations incurred by the Borrower or permitted any Subsidiary in respect of any Sale and Lease-Back Transactions Transaction that is permitted under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments Permitted Refinancing Indebtedness in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) [Reserved]other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the aggregate amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $50,000,000 and 4.5% of Consolidated Total Assets, and any Permitted Refinancing Indebtedness in respect thereof;
(li) other unsecured Indebtedness; provided Indebtedness secured by Liens on the Collateral that are (or, if any Term B Obligations were then outstanding, would have been) pari passu with the Liens securing the Term B Obligations so long as, at the time of and after giving effect to the issuance or incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof), the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.50 to 1.00, provided, (A) that the aggregate outstanding principal amount incurrence of any Indebtedness incurred for borrowed money pursuant to this clause (ll)(i) shall not exceedbe subject to the penultimate paragraph of this Section 6.01 and if any such Indebtedness incurred pursuant to clause (l)(i) is secured by pari passu Liens on Collateral pursuant to Section 6.02(ii) and is in the form of term loans (other than High Yield-Style Loans), at then the time of incurrence of such Indebtedness pursuant to clause (l)(i) shall be further subject to the last paragraph of this Section 6.01 to the extent applicable and (B) any such Indebtedness incurred by any Subsidiary that is not a Guarantor shall not exceed at the time of, and after giving effect thereto) to, the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) thereof, together with the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debtother non-Guarantor Indebtedness outstanding pursuant to Section 6.01(h)(i), in each case permitted by (r)(i) and (s)(i), the Term Loan Credit Agreement as in effect on the Closing Date greater of $25,000,000 and 2.5% of Consolidated Total Assets, and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term thereof;
(m) Guarantees (i) by any Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iiiii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , (iviii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party Party, and (viv) by the Borrower of Indebtedness of Foreign Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); provided provided, that (x) Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations under this Agreement to at least the same extent as such underlying Indebtedness is subordinatedsubordinated and (y) no Guarantee by any Subsidiary of any Junior Financing shall be permitted unless such Subsidiary has also provided a Guarantee of the Loan Obligations pursuant to the Guarantee Agreement;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligationsobligations (including earn-outs), in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment other Investments or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than Guarantees obligations in respect of Indebtedness incurred by any person acquiring all other Indebtedness) in the ordinary course of business or any portion of such business, assets consistent with past practice or Subsidiaries for the purpose of financing any such Permitted Business Acquisitionindustry practices;
(p) Indebtedness supported by incurred under the ABL Credit Agreement (or under any other credit facility with availability subject to a Letter of Credit, borrowing base formula) with aggregate commitments in a principal an amount not in excess of to exceed the stated amount of Permitted ABL Commitment Amount on the date such Letter of Creditcommitments are established;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of businessbusiness consistent with past or industry practice;
(r) (i) other Indebtedness secured by Liens on the Collateral that are junior to the Liens on the Collateral securing the Loan Obligations under this Agreement, so long as no Default or Event of Default has occurred and is continuing or would result from after giving effect to the incurrence of such IndebtednessIndebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof), other Indebtedness so long as the Fixed Charge Coverage Ratio, Net Secured Leverage Ratio on a Pro Forma BasisBasis is not greater than 4.50 to 1.00; provided, that (A) the incurrence of any Indebtedness for borrowed money pursuant to this clause (r)(i) shall be subject to the penultimate paragraph of this Section 6.01 and (B) any such Indebtedness incurred by any Subsidiary that is 2.00 not a Guarantor shall not exceed at the time of, and after giving effect to, the incurrence thereof, together with the aggregate principal amount of any other non-Guarantor Indebtedness outstanding pursuant to 1.00 or Section 6.01(h)(i), (l)(i) and (s)(i), the greater (“Ratio Debt”) of $25,000,000 and 2.5% of Consolidated Total Assets; and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(s) other unsecured Indebtedness so long as the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to Refinance the incurrence of such Ratio DebtIndebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof) is not greater than 5.00 to 1.00; provided provided, (A) that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred for borrowed money pursuant to this clause (ss)(i) shall be subject to the penultimate paragraph of this Section 6.01 and (B) any such Indebtedness incurred by any Subsidiary that is not exceed, a Guarantor shall not exceed at the time of incurrence of such Indebtedness (of, and after giving effect theretoto, the incurrence thereof, together with the aggregate principal amount of any other non-Guarantor Indebtedness outstanding pursuant to Section 6.01(h)(i), (l)(i) and (r)(i), the greater of (i) $45.0 million 25,000,000 and (ii) 2.502.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t) unsecured Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the aggregate amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $25,000,000 and 2.5% of Consolidated Total Assets, and any Permitted Refinancing Indebtedness in respect thereof;
(u) 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business consistent with past or industry practice and not in connection with the borrowing of money or any Hedge Hedging Agreements;.
(uv) Indebtedness representing deferred compensation to employees, directors and officers consultants or independent contractors of the Borrower (or, to the extent such work is done for Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of businessconsistent with past or industry practice;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;in connection with Permitted Receivables Financings.
(xi) Indebtedness consisting of promissory notes issued represented by the Borrower or Second Lien Secured Notes in an aggregate principal amount not to exceed on the date of incurrence, $350,000,000, and (ii) any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06Permitted Refinancing Indebtedness in respect thereof;
(y) Guarantees by the Borrower or any other Restricted Subsidiary obligations in respect of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of businessCash Management Agreements;
(z) Refinancing Notes hereunder and any Permitted Refinancing Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunderrespect thereof;
(aai) unsecured Indebtedness in a an aggregate principal amount not to exceed at the time of incurrence an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (ki) of the definition of “Consolidated Net Income”Incremental Amount at such time, and (ii) so long as any Permitted Refinancing Indebtedness in respect thereof; provided, that (A) the incurrence of any Indebtedness for borrowed money pursuant to this clause (aa) shall be subject to the penultimate paragraph of this Section 6.01 and (B) if any such Indebtedness matures at least 91 days after incurred pursuant to Section 6.01(aa)(i) is secured by pari passu Liens on Collateral pursuant to Section 6.02(jj) and is in the Maturity Dateform of term loans (other than High Yield-Style Loans), then the incurrence of such Indebtedness pursuant to Section 6.01(aa)(i) shall be further subject to the last paragraph of this Section 6.01 to the extent applicable;
(bb) [Reserved];
(cc) Indebtedness in respect incurred on behalf of, or representing Guarantees of Senior Unsecured Notes Indebtedness of, joint ventures that at the time of, and after giving effect to, the incurrence thereof, together with the aggregate amount of any other Indebtedness outstanding pursuant to this Section 6.01(cc), would not exceed the greater of $25,000,000 and 2.5% of Consolidated Total Assets, and any Permitted Refinancing Indebtedness in respect thereof; and;
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (Add) Indebtedness need not be permitted solely issued by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower mayor any of its Subsidiary to current or former officers, in its sole discretiondirectors and employees, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred their respective estates, spouses or existing pursuant to such other clause.forme
Appears in 1 contract
Sources: First Lien Credit Agreement (DS Services of America, Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary); provided that intercompany Indebtedness owed to a Loan Party shall continue to be owed to a Loan Party;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness; provided that such Refinancing is accompanied by a concurrent reduction in Commitments in respect of the Indebtedness being Refinanced;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(ih) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each casecase exists at the time of such acquisition, (1) no Event merger or consolidation or amalgamation and is not created in contemplation of Default shall have occurred such event and be continuing immediately before where such Permitted Business Acquisition acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred consolidation or assumed amalgamation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) immediately after giving effect to such acquisition, merger or consolidation or amalgamation, the time of the assumption and incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)any related transactions, the Borrower shall be in Pro Forma Compliance and (C) the aggregate outstanding principal amount of Indebtedness incurred under pursuant to this Section 6.01(iclause (h) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million35.0 million at any time outstanding;
(ji) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the respective property that is (real or personal, and whether through the subject direct purchase of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment property or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity person owning such property) permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any under this Agreement in order to finance such acquisition, lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund chargesimprovement, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if anyprovided that unless the Payment Conditions are satisfied at the time of the incurrence of such Indebtedness, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) the aggregate principal amount of Indebtedness incurred pursuant to this Section 6.01. For purposes of determining compliance with this Section 6.01, (A6.01(i) Indebtedness need shall not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.exceed $20.0 million;
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof6.01;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.11;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrenceincurrence (or as otherwise required pursuant to an order satisfactory to the Administrative Agent in its sole discretion);
(fe) intercompany Indebtedness between or among of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under owing to the Loan Parties shall be subject to Section 6.04(b) ), and (ii) Indebtedness owing by of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Subsidiary Loan Party to Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business, in an aggregate amount not to exceed $1.0 million oustanding at any time;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as funds in the ordinary course of business or other cash management services in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by to the Borrower of its incurrence incurrence, and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(h) [Reserved];
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of any property (real or personal, and whether through the direct purchase of property that is or the subject Equity Interests of any person owning such property) permitted under this Agreement in order to finance the acquisition, lease or improvement of such property, and any Permitted Refinancing Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof, in an aggregate outstanding principal amount that at the time of, and after giving effect to, the incurrence thereof are permanently reduced by the amount of such prepayments)would not exceed $7.5 million;
(kj) [Reserved];
(lk) other unsecured Indebtedness; provided Indebtedness of the Borrower or any Subsidiary Loan Party owed to a Person that the is not a NewPage Excluded Entity, in an aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, that at the time of incurrence of such Indebtedness (of, and after giving effect theretoto, the incurrence thereof, would not exceed $10.0 million;
(l) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04[Reserved];
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable[reserved], (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, Agreement and (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated in right of payment to other Indebtedness of such person shall be expressly subordinated in right of payment to the Obligations to at least the same extent as such underlying Indebtedness the Guarantee of the Senior Subordinated Notes is subordinatedunder the Senior Subordinated Notes Indenture and of the New Senior Subordinated Notes is under the New Senior Subordinated Notes Indenture;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing such acquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business, in an aggregate amount not to exceed $1.0 million outstanding at any such Permitted Business Acquisitiontime;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit[Reserved];
(q) Indebtedness consisting of (i) the financing of insurance premiums premiums, or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million[Reserved];
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the are not Subsidiary Loan Parties in an aggregate amount not to exceed $1.0 million outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04any time;
(t) unsecured Indebtedness 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 so long as services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business[Reserved];
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents[Reserved];
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower and the Subsidiaries incurred under lines of credit or any Parent Entity permitted overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services and other services of the type described in the definition of Cash Management Obligations) extended by Section 6.06one or more financial institutions reasonably acceptable to the Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbx) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Credit Agreement (Verso Paper Holdings LLC)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed (other than intercompany Indebtedness) of the Subsidiaries existing, or incurred pursuant to facilities existing, on the Restatement Effective Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in incurred to Refinance such Indebtedness or, without duplication, replacements of such facilities that would constitute Permitted Refinancing Indebtedness with respect thereofto such facilities if all Indebtedness available to be incurred thereunder were outstanding on the date of such replacement;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.12;
(d) (i) so long as no Default or Event Indebtedness of Default has occurred the Borrower and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness Subsidiaries owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, provided in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party owing to the Borrower or another any Subsidiary Loan Party is permitted under shall be subject to Section 6.04(b) ), and (ii) Indebtedness owing by of the Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness of the Borrower and the Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, provided reasonably required in the ordinary course conduct of businessthe business (giving effect to any growth or expansion of such business permitted hereunder), including those incurred to secure health, safety safety, insurance and environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of and its incurrence Subsidiaries as conducted in accordance with good and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred prudent business industry practice and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets otherwise as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing IndebtednessDocuments;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed (other than intercompany Indebtedness) of the Subsidiaries existing, or incurred pursuant to facilities existing, on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in incurred to Refinance such Indebtedness or, without duplication, replacements of such facilities that would constitute Permitted Refinancing Indebtedness with respect thereofto such facilities if all Indebtedness available to be incurred thereunder were outstanding on the date of such replacement;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.12;
(d) (i) so long as no Default or Event Indebtedness of Default has occurred the Borrower and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness Subsidiaries owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, provided in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiariesany other Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary Table of the Borrower Contents that is not a Subsidiary Loan Party owing to the Borrower or another any Subsidiary Loan Party is permitted under shall be subject to Section 6.04(b) ), and (ii) Indebtedness owing by of the Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness of the Borrower and the Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, provided reasonably required in the ordinary course conduct of businessthe business (giving effect to any growth or expansion of such business permitted hereunder), including those incurred to secure health, safety safety, insurance and environmental obligations of the Borrower and its Subsidiaries as conducted in accordance with good and prudent business industry practice and otherwise as permitted by the ordinary course of businessLoan Documents;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (i) such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after of notification is received by to the Borrower of its incurrence and (iiiii) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness, in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactionsconsolidation is permitted by this Agreement, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided provided, that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect thereto)to, the aggregate such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding amount pursuant to this paragraph (h) or paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), would not exceed $95,000,000 in the greater of aggregate;
(i) $100.0 million Capital Lease Obligations, mortgage financings and (ii) 7.0% of Consolidated Total Assets as of purchase money Indebtedness incurred by the end of the fiscal quarter immediately Borrower or any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property that is the subject of respective asset permitted under this Agreement in order to finance such Indebtedness and acquisition or improvement, (ii) any Permitted Refinancing Indebtedness in respect thereof, and (iii) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, collectively, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01 or this paragraph (i) and the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03 shall 6.03) would not apply for purposes exceed $95,000,000 in the aggregate; Table of calculating Permitted Indebtedness under this clause Contents
(j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments Indebtedness in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and the Senior Notes issued on the Closing Date, (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of either (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect Bridge Financing funded on the Closing Date and thereafter, any Senior Subordinated Notes issued in exchange therefor or to refinance the Bridge Financing, or (iiB) the Senior Subordinated Notes (as contemplated by clause (c) of the definition of “Senior Subordinated Notes”) issued on the Closing Date, (iii) additional Senior Notes issued after the Closing Date yielding gross cash proceeds not to exceed $34,000,000 so long as, if any Bridge Financing is still outstanding, the net proceeds thereof are applied to prepay the Bridge Financing, (iv) any Permitted Refinancing Indebtedness incurred to Refinance the Bridge Financing , and (v) after no Bridge Financing remains outstanding, any of the foregoing IndebtednessPermitted Refinancing Indebtedness incurred to Refinance such Senior Notes or Senior Subordinated Notes;
(nk) Guarantees (i) of the other Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness Subsidiary, in respect thereof are subject an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of $90,000,000;
(l) Guarantees by the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) Borrower or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Subsidiary of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement; provided, that, notwithstanding anything to the contrary in this Section 6.01, (iiii) of the Borrower and the Subsidiary Loan Parties shall not Guarantee the Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent unless such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness Guarantee is permitted to be incurred under Section 6.01(s6.04, (ii) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that any Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations on terms not less favorable to at least the same extent as Lenders than the subordination terms of such underlying other Indebtedness, and (iii) no Subsidiary shall Guarantee the Senior Notes, the Bridge Financing or the Senior Subordinated Notes or any Indebtedness incurred under Section 6.01(s) or (t) hereunder unless such Subsidiary is subordinatedalso a Subsidiary Loan Party in compliance with the Collateral and Guarantee Requirement;
(om) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition, in each case, to the extent such obligation or transaction is permitted by this Agreement;
(pn) reimbursement and similar obligations of Subsidiaries in respect of letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $10,000,000;
(o) Indebtedness of the Borrower and the Subsidiaries supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;; Table of Contents
(qp) Indebtedness consisting of (ix) the financing of insurance premiums or (iiy) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(rq) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officersconstituting Indebtedness, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01. For purposes ;
(r) Indebtedness of determining compliance with this the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by Lenders and, in each case, established for the Borrower’s and such Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.016.02(b) and in the Security Documents (it being understood, however, that for a period of 30 consecutive days during each fiscal year of the Borrower the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed $20,000,000);
(i) Permitted Subordinated Indebtedness incurred by the Borrower or any Subsidiary; provided, that, (A) immediately after giving effect to the incurrence of such Permitted Subordinated Indebtedness need on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 2.00 to 1.00, (B) at the time of the incurrence of such Permitted Subordinated Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (C) a Responsible Officer of the Borrower shall have delivered an officer’s certificate demonstrating the calculation of the Senior Secured Bank Leverage Ratio in form and detail reasonably satisfactory to the Administrative Agent, and (ii) Permitted Refinancing Indebtedness in respect thereof; provided, further, that (x) the Permitted Subordinated Indebtedness shall not be permitted solely by reference used to one category make, directly or indirectly, any Dividend unless immediately after giving effect to the incurrence of such Permitted Subordinated Indebtedness described in Section 6.01(aand payment of such Dividend on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 1.50 to 1.00, and (y) through Section 6.01(cc) but may so long as any Bridge Financing is outstanding, all net proceeds of any such Permitted Subordinated Indebtedness shall be applied to repay the Bridge Financing and no Permitted Refinancing Indebtedness shall be permitted in part under respect of any combination thereof and Permitted Subordinated Indebtedness;
(i) Permitted Senior Indebtedness incurred by the Borrower or any Subsidiary; provided, that, (A) immediately after giving effect to the incurrence of such Permitted Senior Indebtedness on a Pro Forma Basis, the Senior Secured Bank Leverage Ratio shall not exceed 2.00 to 1.00, (B) at the time of the incurrence of such Permitted Senior Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (C) a Responsible Officer of the Borrower shall have delivered an officer’s certificate demonstrating the calculation of the Senior Secured Bank Leverage Ratio in form and detail reasonably satisfactory to the Administrative Agent, and (ii) Permitted Refinancing Indebtedness in respect thereof; provided, further, that to the extent that the terms of such Indebtedness is Table of Contents permitted hereunder, any increase in the event that an item amount of such Indebtedness as a result of capitalized or paid-in-kind interest or accreted principal on such Indebtedness pursuant to such terms shall not constitute a further issuance or incurrence of Indebtedness for purposes of this Section 6.01(t); provided, further, that (other than x) the Permitted Senior Indebtedness shall not be used to make, directly or indirectly, any item Dividend unless immediately after giving effect to the incurrence of such Permitted Subordinated Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria and payment of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb))such Dividend on a Pro Forma Basis, the Borrower maySenior Secured Bank Leverage Ratio shall not exceed 1.50 to 1.00, in its sole discretionand (y) so long as any Bridge Financing is outstanding, reclassify such item of Indebtedness and such item of no Permitted Senior Indebtedness shall be treated issued or incurred and no Permitted Refinancing Indebtedness shall be permitted in respect of any Permitted Subordinated Indebtedness;
(u) deposits raised by any Material Subsidiary that is subject to state and/or federal banking regulations that constitute Indebtedness owing to such depositor and any discounts or borrowing by such Material Subsidiary;
(v) up to $25,000,000 in aggregate principal amount of Indebtedness of Foreign Subsidiaries that are not Loan Parties at any time outstanding; provided, that to the extent that the terms of such Indebtedness are permitted hereunder, any increase in the amount of such Indebtedness as having been incurred a result of capitalized or existing paid-in-kind interest or accreted principal on such Indebtedness pursuant to such other clauseterms shall not constitute a further issuance or incurrence of Indebtedness for purposes of this Section 6.01(v); and
(w) Indebtedness incurred by the Borrower or any of its Subsidiaries to fund losses, damages, liabilities, claims, costs and expenses (including attorney’s fees, interest, penalties, judgments and settlements, collectively, “Losses”), by reason of any litigation disclosed in this Agreement (including the schedules hereto) or the Offering Circular, including the financial statements included therein, or relating to the same facts and circumstances as disclosed; provided, that, as certified in an Officer’s Certificate executed by a Responsible Officer of the Borrower (i) the Borrower has provided to Cendant a notice in respect of such losses and has a reasonable good faith belief that it its entitled to be indemnified by Cendant pursuant to the Purchase Agreement in respect of such losses and (ii) the Indebtedness incurred pursuant to this clause (w) is in an amount equal to or less than the amount of the losses for which indemnification is claimed; provided, further, that (i) after 30 days of the Borrower receiving funds in satisfaction of such indemnity or (ii) if Cendant gives written notice to the Borrower or any Subsidiary Loan Party that it disputes the Borrower’s entitlement to such indemnity with respect to such losses and (A) such dispute is not challenged by the Borrower within 30 days of receipt of such notice or (B) there is a final judgment of a court of competent jurisdiction confirming that the Borrower is not entitled to such indemnity, which judgment is not discharged, waived or stayed for a period of 60 days, any amounts incurred pursuant to this clause (w) in respect of such indemnity that remain outstanding shall no longer be permitted under this clause (w) and shall be deemed to be incurred on such date.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than (i) intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with Holdings or any subsidiary and (ii) Indebtedness in respect thereofof working capital facilities);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of Holdings and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Holdings or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; any other Subsidiary, provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by of the Borrower or to any Subsidiary and Indebtedness of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a corporation merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; Indebtedness (unless such Indebtedness is with respect to working capital facilities), provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect theretoto, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), the aggregate outstanding amount paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), would not exceed $30.0 million in the greater of aggregate;
(i) $100.0 million Capital Lease Obligations, mortgage financings and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately purchase money Indebtedness incurred by Holdings or any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness respective asset permitted under this clause (j) Agreement in order to finance such acquisition or permitted Sale improvement, and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof are subject (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i) and the ABL/Term Loan Intercreditor Agreement (Remaining Present Value of leases permitted under Section 6.03) would not exceed $30.0 million in the case aggregate;
(j) Capital Lease Obligations incurred by Holdings or any Subsidiary in respect of Term any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness of Holdings or any Subsidiary, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of $15.0 million;
(l) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iiiii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees guarantees are permitted by Section 6.04 6.04(b), (other than Section 6.04(t)); iii) by any Foreign Subsidiary of Indebtedness of another Foreign Subsidiary, and (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(a) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)s); provided that Guarantees by Borrower Holdings or any other Subsidiary Loan Party under this clause (nSection 6.01(1) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinatedObligations;
(om) Indebtedness arising from agreements of Borrower Holdings or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(n) [reserved];
(o) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $5.0 million;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (ix) the financing of insurance premiums or (iiy) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event unsecured Indebtedness consisting of Default has occurred Permitted Debt Securities and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionRefinancings thereof;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness for working capital purposes incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business on ordinary business terms in an aggregate amount not to exceed $20 million outstanding at any time;
(t) Indebtedness of Holdings with respect to the Seller Note and not in connection with the borrowing of money or any Hedge AgreementsPermitted Refinancings thereof;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbt) of this Section 6.01. For purposes of determining compliance with this Section 6.01, above and paragraph (Av) below; and
(v) Indebtedness need of the Borrower and its Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, ACH services) extended by Citibank, N.A. (or any successor by merger thereto) and/or one or more of its banking affiliates or another bank reasonably acceptable to the Administrative Agent and (in each case) established for the Borrower and its Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be permitted solely by reference secured as, but only to one category of Permitted Indebtedness described the extent, provided in Section 6.01(a6.02(b) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event Security Documents (it being understood, however, that an item for a period of 30 consecutive days during each fiscal year of the Borrower the outstanding principal amount of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(aunder the Overdraft Line shall not exceed $5.0 million), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Credit Agreement (Hexion Specialty Chemicals, Inc.)
Indebtedness. IncurPrior to or at the Closing, create or assume any Indebtedness, except:
Seller (a) any Indebtedness listed on Schedule 6.01(a) shall negotiate and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder obtain, or under cause the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any members of the foregoing Indebtedness;
(c) Indebtedness pursuant Company Group to Hedge Agreements other than for speculative purposes;
(d) negotiate and obtain, (i) so long as no Default or Event releases of Default has occurred and is continuing or would result from the incurrence of such all Liens securing Credit Document Indebtedness, any Post-Effective Time Indebtedness and any other Indebtedness secured by For Borrowed Money that are burdening the Subject Securities and the Assets, (i) written authorizations to file UCC-3 termination statements written releases in all applicable jurisdictions to evidence the release of Liens permitted by Section 6.02(u) so long assecuring Credit Document Indebtedness, on a Pro Forma Basisany Post-Effective Time Indebtedness and any other Indebtedness For Borrowed Money that are burdening the Subject Securities and the Assets, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (iii) all instruments and agreements to effect and file of record the release of all Liens securing Credit Document Indebtedness, any Permitted Refinancing Post-Effective Time Indebtedness incurred to Refinance such Leverage Ratio Debt;
and any other Indebtedness For Borrowed Money that are burdening the Subject Securities and the Assets and (ea) Indebtedness owed to payoff (including obligations in respect by directing the Purchaser to pay a portion of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) Closing Payment to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, applicable lenders in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness accordance with Section 10.3(a) with respect to reimbursement obligations regarding workers’ compensation claimsall Credit Document Indebtedness, such obligations shall be reimbursed not any Post-Effective Time Indebtedness and any other Indebtedness For Borrowed Money with proceeds from the Closing Payment). No later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 two Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Closing Date, Seller shall deliver to Purchaser drafts of customary lender undertakings by the applicable creditor(s) (or the administrative agent on behalf thereof, if applicable), to release in full, upon payment of the amounts under the Credit Document Indebtedness, any Post-Effective Time Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing other Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if For Borrowed Money with the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on from the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clausePayment.
Appears in 1 contract
Indebtedness. Incur, create or assume any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) Indebtedness in respect of 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 environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) (i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Indebtedness. IncurCreate, create incur, assume or assume suffer to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) of the Borrower and any Permitted Refinancing Indebtedness in respect thereofof its Subsidiaries under the Loan Documents;
(b) Indebtedness created hereunder or under outstanding on the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments date hereof and listed on Schedule 7.03(b) and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtednessthereof;
(c) Indebtedness pursuant of any Restricted Subsidiary owing to Hedge Agreements other than (i) the Borrower or (ii) any Restricted Subsidiaries that own (directly or indirectly) Equity Interests in such Restricted Subsidiary or whose Equity Interests are owned (directly or indirectly) by such Restricted Subsidiary;
(d) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes;
(de) Indebtedness representing deferred compensation to employees of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(f) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower permitted by Section 7.06;
(g) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts;
(h) Indebtedness consisting of the financing of insurance premiums;
(i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations by the Borrower or any of the Restricted Subsidiaries in respect of letters of credit or credit, bank guarantees guarantees, bankers’ acceptances or similar instruments for issued or created in the benefit of) any person providing workers’ compensationordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance (including or self-insurance) to the Borrower insurance or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that any reimbursement obligations regarding workers’ compensation claims, such obligations shall be in respect thereof are reimbursed not later than within 30 days following such incurrencethe incurrence thereof;
(fj) intercompany Permitted Subordinated Indebtedness between or among of the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing which shall not be guaranteed by any Restricted Subsidiary or Material Unrestricted Subsidiary except as permitted in the definition of the Borrower that is not a Loan Party to the Borrower such term); and
(k) Any Guarantee (express or another Subsidiary Loan Party is permitted under Section 6.04(bimplied) and by (iii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is subordinated to the Obligations pursuant to customary subordination provisions;
(g) of Wynn Resorts Holdings, LLC of any senior secured Indebtedness in respect of performance bonds▇▇▇▇ Las Vegas or, bid bondsif ▇▇▇▇ Las Vegas has no material senior secured Indebtedness, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, provided in the ordinary course any senior unsecured Indebtedness of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) Indebtedness in respect of Cash Management Services in the ordinary course of business▇▇▇▇ Las Vegas, (ii) other ▇▇▇▇ Group Asia, Inc., ▇▇▇▇ Resorts International, Ltd., ▇▇▇▇ Resorts (Macau) Holdings, Ltd. or ▇▇▇▇ Resorts (Macau), Ltd. or any Restricted Subsidiary thereof of any senior secured Indebtedness arising from the honoring by a bank of ▇▇▇▇ Resorts Macau or, if ▇▇▇▇ Resorts Macau has no material senior secured Indebtedness, any senior unsecured Indebtedness of Wynn Resorts Macau or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course Restricted Subsidiary (other than ▇▇▇▇ Las Vegas) of business;
(i) any senior secured Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; providedof any Material Unrestricted Subsidiary thereof or, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is other Material Unrestricted Subsidiary has no material senior secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, any senior unsecured Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved]Material Unrestricted Subsidiary;
(l) other unsecured IndebtednessOther Indebtedness outstanding not to exceed $25,000,000; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;and
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bbl) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) (i) Indebtedness existing on the Closing Date (provided that any Indebtedness listed that is in excess of $25.0 million individually or $100.0 million in the aggregate shall only be permitted under this clause (a)(i) to the extent such Indebtedness is set forth on Schedule 6.01(a6.01 to the 2008 Credit Agreement) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary), (ii) intercompany Indebtedness existing on the Closing Date; provided that any Indebtedness of the Borrower or a Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent and (iii) the Retained Notes and any Permitted Refinancing Indebtedness incurred to Refinance the Retained Notes;
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments Documents and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness;
(ec) Indebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements not entered into for speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that other than in the case of intercompany Indebtedness between or among current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that , (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Subsidiary Loan Party owing to the Borrower or another any Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) or (ff) and (ii) Indebtedness owing by of the Borrower to any Subsidiary and Indebtedness of the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of business;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets (including, in each case, (1) no Event in connection with the acquisition of Default shall have occurred Subsidiaries and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect assets pursuant to such Permitted Business Acquisition and any related transactionsthe Post-Closing CMBS Transaction), (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such which Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each casecase exists at the time of such acquisition, on a Pro Forma Basis immediately after giving effect to merger, consolidation or amalgamation and is not created in contemplation of such incurrence event and where such acquisition, merger, consolidation or assumption of Indebtedness amalgamation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the time assumption and incurrence of any Indebtedness and any related transactions, the Borrower shall be in Pro Forma Compliance;
(i) Capital Lease Obligations, mortgage financings and other purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) after giving effect to the issuance, incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)such Indebtedness, the aggregate outstanding amount of Borrower shall be in Pro Forma Compliance, and (ii) any Permitted Refinancing Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionrespect thereof;
(j) Capital Lease Obligations, Indebtedness Obligations incurred with by the Borrower or any Subsidiary in respect to installations, repairs, improvement of any Sale and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Lease-Back Transaction that is permitted under Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments)thereof;
(k) [Reserved];
(l) other unsecured Indebtedness; provided that Indebtedness of the Borrower or any Subsidiary, in an aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, that at the time of incurrence of such Indebtedness (of, and after giving effect thereto) to, the incurrence thereof, would not exceed the greater of (i) $150.0 million 1,000,000,000 and (ii) 9.04.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of ; provided that with respect to (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted Indebtedness issued by the Term Borrower and Guaranteed by any Subsidiary Loan Credit Agreement as in effect on Party after the Closing Date and (ii) any debt security issued by any Subsidiary Loan Party after the Closing Date, the Guarantee by such Subsidiary Loan Party or the debt security of such Subsidiary Loan Party shall be subject to the Intercreditor Agreement or another intercreditor agreement not materially less favorable to the Lenders than the Intercreditor Agreement;
(l) Indebtedness of the Borrower pursuant to (i) the Senior Unsecured Notes, the Senior Notes and the Interim Loan Facility in an aggregate principal amount that is not in excess of $6,775,000,000 plus the PIK Interest Amount, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing such Indebtedness;
(nm) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause paragraph (ml) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable6.01, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this AgreementAgreement (other than Retained Notes maturing after the Term B Facility Maturity Date) (subject to the proviso at the end of this clause (m)), (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); , and (iv) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party and Party; provided, that (vx) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying other Indebtedness is subordinatedso subordinated and (y) with respect to any Indebtedness issued by the Borrower and permitted pursuant to clause (a) (to the extent such Indebtedness is not Guaranteed by such Subsidiary Loan Party on the Closing Date), (k), (l) or (r) of this Section 6.01, any Guarantee thereof by a Subsidiary Loan Party shall be subject to the Intercreditor Agreement or another intercreditor agreement not materially less favorable to the Lenders than the Intercreditor Agreement;
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, 2008 Transactions and any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) other Indebtedness so long as (A) no Default or Event of Default has shall have occurred and is be continuing or would result from therefrom and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, Senior Secured Leverage Ratio on a Pro Forma BasisBasis shall not be greater than 4.5 to 1.0 and (ii) Permitted Refinancing Indebtedness in respect thereof; provided, however, that (x) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties that is 2.00 outstanding pursuant to 1.00 or greater clause (“Ratio Debt”r)(i) shall not at any time exceed $500 million in the aggregate and (y) with respect to (i) any Indebtedness issued by the Borrower and Guaranteed by any Subsidiary Loan Party after the Closing Date and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at debt security issued by any Subsidiary Loan Party after the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)Closing Date, the aggregate outstanding amount Guarantee by such Subsidiary Loan Party or the debt security of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are such Subsidiary Loan Party shall be subject to the Intercreditor Agreement or another intercreditor agreement not Guarantors does not exceed $50.0 millionmaterially less favorable to the Lenders than the Intercreditor Agreement;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the are not Subsidiary Loan Parties in an aggregate amount not to exceed at any time outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04500 million;
(t) unsecured Indebtedness 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 so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 90 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of businessconnection with Permitted Receivables Financings;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the extent that Administrative Agent or by one or more of the Lenders or their Affiliates and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such obligations are collateralized by cash or cash equivalentsIndebtedness, the “Overdraft Line”), which Indebtedness may be secured under the Security Documents;
(x) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in excess, at any one time outstanding, of $300 million;
(i) Indebtedness in connection with any Project Financings and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(z) (i) any Qualified Non-Recourse Debt and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) Indebtedness consisting of promissory notes Indebtedness issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates estates, spouses or family members former spouses to finance the purchase or redemption of Equity Interests of the Borrower Holdings or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(zbb) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date 2008 Transactions or and Permitted Business Acquisitions or any other Investment permitted hereunder;
(aacc) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any Subsidiary to any joint venture (regardless of the other Restricted Subsidiaries form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (other than any such sale including with respect to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiaryintercompany self insurance arrangements) of the Borrower or and its Subsidiaries;
(dd) Indebtedness pursuant to the Initial First Lien Notes and any Future First Lien Notes; provided that:
(i) the Administrative Agent shall have received a certificate signed by the Chief Financial Officer of the other Restricted Subsidiaries Borrower stating that the incurrence of such First Lien Notes shall not result in a reduction in the outstanding amount of the Obligations that are permitted to be secured by the Collateral without equally and ratably securing any Retained Notes; and
(other than in respect ii) the Borrower shall prepay Term Loans with the First Lien Net Proceeds of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves First Lien Notes in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity DateSection 2.11(h);
(bbee) Indebtedness in respect of Senior Unsecured Notes the Loan Parties that is either unsecured or secured by Liens ranking junior to the Liens securing the Obligations or secured by a first priority Lien on the Collateral that is pari passu with the Lien securing the Obligations and the aggregate principal amount of which does not exceed the Incremental Amount and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness; andprovided that
(cci) all premium the Administrative Agent shall have received a certificate signed by the Chief Financial Officer of the Borrower stating that (if any1) the incurrence of such Indebtedness shall not result in a reduction in the outstanding amount of the Obligations that are permitted to be secured by the Collateral without equally and ratably securing any Retained Notes and (2) other than in the case of any such Permitted Refinancing Indebtedness, including tender premiumsthe Borrower has elected to decrease the Incremental Amount as a result of the incurrence of such Indebtedness as contemplated by the definition of Incremental Amount;
(ii) other than in the case of any First Lien Notes (which shall be subject to the limitations contained in the definition of First Lien Notes), defeasance costs(1) the terms of such Indebtedness do not provide for any scheduled repayment, interest mandatory redemption or sinking fund obligations prior to the date that is ninety-one (including post-petition interest91) days following the latest Term B Facility Maturity Date in effect on the date of incurrence (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default), fees(2) the covenants, expensesevents of default, charges guarantees, collateral and additional or contingent interest on obligations described in clauses (a) through (bb) other terms of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of such Indebtedness (other than any item of Indebtedness interest rate and redemption premiums), taken as a whole, are not more restrictive to the Borrower and the Subsidiaries than those set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria Initial First Lien Notes Indenture; provided that a certificate of another category the Chief Financial Officer of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower maydelivered to the Administrative Agent in good faith at least three Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in its sole discretion, reclassify good faith that such item of Indebtedness terms and such item of Indebtedness conditions satisfy the foregoing requirement shall be treated as having been incurred or existing pursuant to conclusive evidence that such other clause.terms and conditions satisf
Appears in 1 contract
Sources: Amendment Agreement (Caesars Entertainment Operating Company, Inc.)
Indebtedness. IncurThe Parent Borrower will not, create nor will the Parent Borrower permit any of its Restricted Subsidiaries to, create, incur or assume any IndebtednessIndebtedness of the Parent Borrower or any of its Restricted Subsidiaries, except:
(a) any Indebtedness listed incurred under this Agreement and the other Loan Documents;
(b) (i) the Indebtedness set forth on Schedule 6.01(a) 7.03 hereto, and any Permitted Refinancing Indebtedness in respect thereofof any such Indebtedness and (ii) intercompany Indebtedness outstanding on the Closing Date and any Permitted Refinancing Indebtedness in respect of any such Indebtedness; provided that all such intercompany Indebtedness of any Credit Party owed to any Restricted Subsidiary that is not a Credit Party shall be subordinated to the Obligations pursuant to an Intercompany Note;
(bi) Indebtedness created hereunder (including Capitalized Lease Obligations) financing the acquisition, construction, repair, replacement or under improvement of fixed or capital assets; provided that such Indebtedness is incurred concurrently with or within one hundred eighty (180) days after the other Loan Documentsapplicable acquisition, Credit Agreement Refinancing Indebtednessconstruction, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing repair, replacement or improvement; provided that the aggregate amount of such Indebtedness incurred pursuant to Refinance any of the foregoing Indebtedness;
this clause (c) and outstanding at any one time shall not exceed the greater of (x) $17,500,000 and (y) 5.00% of Consolidated Total Assets (measured as of the date such Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
is incurred (d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a after giving Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”Effect thereto)) and (ii) any Permitted Refinancing Indebtedness in respect of such Indebtedness (it being understood that such Permitted Refinancing Indebtedness shall be taken into account in future determinations of Indebtedness incurred to Refinance such Leverage Ratio Debtunder this Section 7.03(c) for purposes of the cap set forth herein (other than any Permitted Refinancing Indebtedness incurred in respect of Indebtedness listed on Schedule 7.03));
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit ofd) any person providing workers’ compensation, health, disability Indebtedness issued or other employee benefits or property, casualty or liability insurance (including self-insurance) to loaned by the Parent Borrower or any of the other Restricted Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Parent Borrower (i) to any Credit Party, provided that such Indebtedness is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and Subordinated Indebtedness, (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Credit Party is subordinated to the Obligations pursuant extent otherwise permitted by Section 7.04 or (iii) to customary subordination provisionsthe extent the amount of any such loan or guarantee would have been permitted to be made as a Restricted Payment under Section 7.05; provided further that all such Indebtedness shall be evidenced by an Intercompany Note;
(ge) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds the Parent Borrower and completion guarantees and similar obligations, in each caseits Restricted Subsidiaries under Hedge Agreements, provided in the ordinary course of business, including those incurred to secure health, safety such Hedge Agreements have not been entered into for speculative purposes and environmental obligations are (or were) entered into by such Person in the ordinary course of business;
(if) Indebtedness constituting Guaranty Obligations permitted by Section 7.04; provided that if the Guaranty Obligations are in respect of Cash Management Services Subordinated Indebtedness, such Guaranty Obligations shall be subordinated to the guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the ordinary course subordination of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered in the ordinary course of businessunderlying Indebtedness;
(ig) Indebtedness incurred or of Restricted Subsidiaries in an amount not to exceed $25,000,000 in the aggregate assumed in connection with a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition other Investment permitted by this Agreement and any related transactionsPermitted Refinancing Indebtedness incurred, issued or otherwise obtained to Refinance (2in whole or in part) the Borrower shall be able to incur $1 of Ratio Debt, such Indebtedness; provided that:
(3)(xA) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence Indebtedness, no Specified Event of Default exists or assumption of is continuing or would result therefrom;
(B) such Indebtedness is and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at remains solely the time obligation of the incurrence Person and/or such Person’s subsidiaries that are acquired and such Indebtedness was not incurred in anticipation of such Permitted Acquisition or assumption of any Indebtedness pursuant to clause such Investment; and
(iC) above (and after giving effect thereto), the aggregate outstanding principal amount of Indebtedness incurred at any time outstanding under this Section 6.01(iclause (g) in respect of which the primary obligor is a Restricted Subsidiary that is not a Credit Party, together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate which is then outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.037.03(q) and Section 7.03(x) in respect of which the primary obligor is a Restricted Subsidiary that is not a Credit Party, shall not exceed the greater of (ix) $100.0 million 15,000,000 and (iiy) 7.04.00% of Consolidated Total Assets (measured as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect Pro Forma Effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(o) Indebtedness arising from agreements of Borrower or any of the other Restricted Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Credit Agreement (PGT, Inc.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary of the Borrower);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of the Borrower and its Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.12;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted its Subsidiaries pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of businessPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower and or any of its Subsidiaries owing to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is extent permitted under by Section 6.04(b) and (ii) 6.04, provided that such Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent (the “Subordinated Intercompany Debt”);
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any of its Subsidiaries after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger, amalgamation or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger, amalgamation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; , provided that that, solely with respect to a Person being merged into, amalgamated or consolidated with the Borrower or any of its Subsidiaries and Indebtedness being assumed in connection with the acquisition of assets, the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect thereto)to, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r)such acquisition, in each casemerger, by Restricted Subsidiaries that are not Guarantors does amalgamation or consolidation, such assumption or such incurrence, as applicable would not exceed U.S. $50.0 million30,000,000;
(ji) Capital Lease Obligations, Obligations and purchase money Indebtedness incurred with respect to installations, repairs, improvement and removal by the Borrower or any of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately its Subsidiaries prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 90 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness respective asset permitted under this clause (j) Agreement in order to finance such acquisition, lease or permitted Sale improvement, and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof are subject would not exceed U.S. $25,000,000;
(j) Capital Lease Obligations incurred by the Borrower or any of its Subsidiaries in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other unsecured Indebtedness, in an aggregate principal amount at any time outstanding pursuant to the ABL/Term this Section 6.01(k) not to exceed U.S. $50,000,000;
(l) Guarantees (i) by any Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower any other Loan Party or any other Subsidiary Loan Party permitted to be incurred under this Agreement, of the Borrower and (iii) of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (ivii) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) the Borrower or any of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t))its Subsidiaries; provided that Guarantees by the Borrower or any other Loan Party of its Subsidiaries under this clause (nSection 6.01(l) of any other Indebtedness of a person Person that is subordinated to other Indebtedness of such person Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(om) Indebtedness arising from agreements of the Borrower or any of the other Restricted its Subsidiaries providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary of Borrower, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary of the Borrower for the purpose of financing any such Permitted Business Acquisitionacquisition;
(pn) Indebtedness supported by a Letter letter of Creditcredit issued pursuant to the Multi-Year Credit Facility, in a principal amount not in excess of the stated amount of such Letter letter of Creditcredit;
(o) Indebtedness consisting of Permitted Senior Unsecured Debt in an aggregate principal amount not to exceed U.S. $200,000,000;
(p) Indebtedness of the Loan Parties pursuant to the Multi-Year Credit Facility and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(q) Indebtedness consisting of (i) Indebtedness incurred and/or assumed in connection with Section 6.04(j); provided that the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence aggregate amount of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 outstanding pursuant to 1.00 or greater (“Ratio Debt”this Section 6.01(q) shall not exceed U.S. $100,000,000 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionIndebtedness;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(wr) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereofinsurance premium financing arrangements; and
(ccs) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbr) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clauseabove.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Frank's International N.V.)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default Indebtedness existing or Event committed on the Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and (y) in excess of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, $5,000,000 shall be set forth on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”Schedule 6.01) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(eb) (i) Indebtedness created hereunder (including pursuant to Section 2.21) and under the other Loan Documents and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness business or consistent with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrencepast practice or industry practices;
(f) intercompany Indebtedness between or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (ie) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to of the Borrower; provided, that Indebtedness of any Restricted Subsidiary that is not a Doc#: US1:15347125v11 Subsidiary Loan Party is subordinated owing to the Obligations Loan Parties incurred pursuant to customary subordination provisionsthis Section 6.01(e) shall be subject to Section 6.04;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of businessbusiness or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of businessbusiness or consistent with past practice or industry practices;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services entered services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition; provided, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to other permitted Investment), where such Permitted Business Acquisition and any related transactionsacquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (2w) in the Borrower shall be able to incur $1 case of Ratio Debt, (3)(x) if any such Indebtedness incurred or assumed is secured by Liens on Collateral that are Other First Lien DebtLiens, the Net First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than the greater of (I) 3.00 to 1.00 and (II) the Net First Lien Leverage Ratio in effect immediately prior thereto, (x) in the case of any such Indebtedness secured by Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than the greater of (I) 4.00 to 1.00 and (II) the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of any Indebtedness that is unsecured or secured by assets that are not Collateral, (I) the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not less than the lesser of (A) 2.00 to 1.00 or (B) the Interest Coverage Ratio in effect immediately prior thereto or (II) the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than the greater of (A) 5.00 to 1.00 and (B) the Net Total Leverage Ratio in effect immediately prior thereto and (z) in the case of any such Indebtedness incurred under this clause (h) by a Subsidiary other than a Subsidiary Loan Party that is incurred in contemplation of such acquisition, merger or consolidation, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding at such time pursuant to Section 6.01(q)(i), Section 6.01(r)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $62,500,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause ;
(i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(ii) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Financing Lease Obligations, purchase money or mortgage financings and other Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days Doc#: US1:15347125v11 after the acquisition, lease lease, construction, repair, replacement or improvement of the respective property that is (real or personal, and whether through the subject direct purchase of property or the Equity Interest of any person owning such Indebtedness and (iiproperty) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness permitted under this clause (j) Agreement in order to finance such acquisition, lease, construction, repair, replacement or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each caseimprovement, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess that immediately after giving effect to the incurrence of (A) $625.0 million plus (B) such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any Incremental Term Loans other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $75,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (ii) Financing Lease Obligations Incurred by the Borrower or Incremental Equivalent Term Debtany Subsidiary to finance (whether prior to or within 270 days after) the acquisition, lease, construction, repair, replacement or improvement of computer equipment (including servers), storage equipment, networking equipment and other equipment and similar assets related to the business of the Borrower and the Subsidiaries and any finance lease obligations not prohibited hereunder and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Financing Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03, (ii) Financing Lease Obligations or other obligations or deferrals attributable to capital spending and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) other Indebtedness of the Borrower or any Subsidiary, in each case permitted by an aggregate principal amount that, immediately after giving effect to the Term Loan Credit Agreement as in effect incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $100,000,000 and 0.40 times the EBITDA calculated on a Pro Forma Basis for the Closing Date then most recently ended Test Period, and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject (this clause (k), the “General Debt Basket”);
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount up to the ABL/Term Loan Intercreditor Agreement aggregate amount of net cash proceeds received after the Closing Date by the Borrower from (x) the issuance or sale of its Qualified Equity Interests (or shareholder loans on terms reasonably acceptable to the Administrative Agent) or (y) a cash contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or Parent of its Qualified Equity Interests (or shareholder loans on terms reasonably acceptable to the Administrative Agent) or a cash contribution to its common equity (in the each case of Term Loan Obligations(x) and (y), other than proceeds from the sale of Equity Interests to, or other intercreditor agreement(s) substantially consistent with and no less favorable contributions from, the Borrower or any of its Subsidiaries), to the Lenders extent such net cash proceeds do not constitute Excluded Contributions or Permitted Cure Securities and were not included in the calculation of the Cumulative Credit;
(m) Guarantees (i) by Holdings, the Borrower or any material respect than the ABL/Term Subsidiary Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party permitted to be incurred by it under this Agreement, (iiiii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); ) and (iviii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t))Party; provided provided, that Guarantees by the Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;; Doc#: US1:15347125v11
(on) Indebtedness arising from agreements of the Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligationsobligations (including earn-outs), in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment other Investments or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade-related letters of credit (other than Guarantees obligations in respect of Indebtedness incurred by any person acquiring all other Indebtedness) in the ordinary course of business or any portion of such business, assets consistent with past practice or Subsidiaries for the purpose of financing any such Permitted Business Acquisitionindustry practices;
(p) Indebtedness supported by a Letter of CreditLoan Parties arising from Permitted Bridge-to Securitization Financing, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from immediately after giving effect to the incurrence of such IndebtednessIndebtedness and the use of proceeds thereof and all contemporaneous transactions entered into in connection therewith, other Indebtedness so long as the Fixed Charge Coverage Ratio, Net Secured Leverage Ratio on a Pro Forma BasisBasis is not greater than 4.00 to 1.00;
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is 2.00 not greater than 3.00 to 1.00 (or, if such Indebtedness is incurred in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition and including through a merger or consolidation) or an Investment, where such acquisition, merger, consolidation or Investment is not prohibited by this Agreement (including the acquisition of Securitization Assets of or by a Securitization Entity that are or will in twelve months be subject to a Permitted Securitization Financing), than the greater of (“I) 3.00 to 1.00 and (II) the Net First Lien Leverage Ratio Debt”in effect immediately prior thereto); provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(h)(i) (to the extent set forth therein), this Section 6.01(q)(i), Section 6.01(r)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $62,500,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 4.00 to 1.00 (or if such Indebtedness is incurred in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition and including through a merger or consolidation) or an Investment, where such acquisition, merger, consolidation or Investment is not prohibited by this Agreement, the greater of (I) 4.00 to Refinance 1.00 and (II) the Net Secured Leverage Ratio in effect immediately prior thereto); provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such Ratio Debt; provided time that at is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the time aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(h)(i) (to the extent set forth therein), Section 6.01(q)(i), this Section 6.01(r)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $62,500,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred for borrowed money pursuant to this clause (sr)(i) shall not exceedbe subject to the last paragraph of this Section 6.01, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; andDoc#: US1:15347125v11
(cci) all premium unsecured Indebtedness or Indebtedness secured by assets that are not Collateral so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, either (x) the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00 (or, if anysuch Indebtedness is incurred in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition and including through a merger or consolidation) or an Investment, where such acquisition, merger, consolidation or Investment is not prohibited by this Agreement (including tender premiumsthe acquisition of Securitization Assets of or by a Securitization Entity that are or will in twelve months be subject to a Permitted Securitization Financing), defeasance costs, interest than the lesser of (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (aI) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference 2.00 to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof 1.00 and (BII) the Interest Coverage Ratio in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (meffect immediately prior thereto) or (bby) meets the criteria Net Total Leverage Ratio on a Pro Forma Basis is not greater than 5.00 to 1.00 (or, if such Indebtedness is incurred in connection with the acquisition of another category assets or Equity Interests (including a Permitted Business Acquisition and including through a merger or consolidation) or an Investment, where such acquisition, merger, consolidation or Investment is not prohibited by this Agreement (including the acquisition of Securitization Assets of or by a Securitization Entity that are or will in twelve months be subject to a Permitted Securitization Financing), than the greater of (I) 5.00 to 1.00 and (II) the Net Total Leverage Ratio in effect immediately prior thereto); provided, that (x) the aggregate principal amount of Indebtedness described in Section 6.01 outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than Sections 6.01(a)a Subsidiary Loan Party shall not exceed, (b), (m) or (bb)), when taken together with the Borrower may, in its sole discretion, reclassify such item aggregate principal amount of any other Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing outstanding pursuant to such other clause.Section 6.01(h)(i) (to
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) created hereunder and any Permitted Refinancing Indebtedness in respect thereofunder the other Loan Documents;
(b) Indebtedness created hereunder or existing on the Closing Date under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments SemLogistics Facility and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness and (ii) any incremental Indebtedness thereunder (or under any Permitted Refinancing Indebtedness with respect thereto), provided that, in each case, such Indebtedness is recourse only to SemLogistics and its Subsidiaries (provided that SemEuro may provide a pledge of its ownership interests in SemLogistics) and following the occurrence of such Indebtedness, the Borrower is in compliance with the Financial Performance Covenants.
(c) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to Swap Agreements required under Section 5.12 or permitted by Section 6.12;
(ed) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower or any Restricted Subsidiary of the other Restricted Subsidiaries Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of businessPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 thirty (30) days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiaries; provided that (i) Indebtedness owing by any Restricted Subsidiary owing to the Borrower or any Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is extent permitted under by Section 6.04(b) and (ii) 6.04, provided that Indebtedness owing by the Borrower or of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) business and Indebtedness in respect arising out of Cash Management Services advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business, business and consistent with past practice;
(iig) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 five (5) Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in purchase cards is extinguished within sixty (60) days from the ordinary course of businessdue date thereof;
(i) Indebtedness incurred of a Restricted Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Restricted Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger, amalgamation or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger, amalgamation or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; , provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect thereto)to, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r)such acquisition, in each casemerger, by Restricted Subsidiaries that are not Guarantors does amalgamation or consolidation, such assumption or such incurrence, as applicable, would not exceed $50.0 U.S.$20.0 million;
(ji) Capital Lease Obligations, Indebtedness Obligations incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions by the Borrower or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately any Restricted Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness respective asset permitted under this clause Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof would not exceed U.S.$20.0 million;
(j) Mortgage financings and purchase money Indebtedness incurred by the Borrower or any Restricted Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof would not exceed U.S.$20.0 million;
(k) Capital Lease Obligations incurred by the Borrower or any Restricted Subsidiary in respect of any Sale and Lease-Back Transactions Transaction that is permitted under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved]6.03;
(l) other unsecured Indebtedness; provided that the , in an aggregate outstanding principal amount of Indebtedness incurred at any time outstanding pursuant to this clause (lSection 6.01(l) shall not exceed, at the time in excess of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04U.S.$20.0 million;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as by any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, Agreement and (iiiii) of Indebtedness otherwise permitted hereunder of by the Borrower or any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); (iv) by of Indebtedness of any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided that Guarantees by Borrower or any other Loan Party under this clause (n) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated6.04;
(on) Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary of the other Restricted Subsidiaries Borrower providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person Person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such Permitted Business Acquisitionacquisition;
(po) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(qp) commercial premium finance agreements in customary form entered into with insurers or their Affiliates solely to finance premiums of insurance required under Section 5.02; (q)(i) Indebtedness consisting of (i) incurred and/or assumed in connection with Section 6.04(j); provided that the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence aggregate amount of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 outstanding pursuant to 1.00 or greater (“Ratio Debt”this Section 6.01(q) shall not exceed U.S.$25.0 million and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 millionIndebtedness;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(cc) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bb) of this Section 6.01. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
Appears in 1 contract
Sources: Credit Agreement (SemGroup Corp)
Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) any Indebtedness listed existing on the Closing Date and set forth on Schedule 6.01(a6.01 (other than Capital Lease Obligations) and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with any Borrower or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Intercompany Indebtedness pursuant existing on the Closing Date and disclosed to Hedge Agreements the Administrative Agent in writing prior to the Closing Date (other than for speculative purposes;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”Capital Lease Obligations) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with any Borrower or any Subsidiary);
(ed) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Holdings or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided provided, that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of the Loan Parties to any Subsidiary and of any Subsidiary to the Loan Parties or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiariesany Subsidiary; provided provided, that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party owing to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) and (ii) Indebtedness of the Loan Parties owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is (the “Subordinated Intercompany Debt”) to the greatest extent permitted by applicable law (with Holdings to advise the Administrative Agent in reasonable detail of any limitations under applicable law), (A) shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent, and (B) such Indebtedness (and all interest thereon and all fees, expenses, and other amounts payable in respect thereof) shall only be payable in kind;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business; provided, so long as that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 ten Business Days after of notification is received by the Borrower to Holdings or a Subsidiary of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(h) Capital Lease Obligations or other obligations incurred by any Subsidiary in respect of any Sale and Lease Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof; provided that, the amount of Indebtedness incurred pursuant to this Section 6.01(h), when combined with the aggregate principal amount of Indebtedness incurred pursuant to (i) Indebtedness incurred or assumed in connection with a Permitted Business Acquisition; providedSection 6.01(i) below and Sections 6.01(i) and 6.01(j) of the ABL Credit Agreement, in each case, (1) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant permitted under Section 6.03 and Section 6.03(b) of the ABL Credit Agreement, shall not exceed an aggregate principal amount equal to Section 6.03, the greater of $37,000,000 at any time outstanding;
(i) $100.0 million Capital Lease Obligations, mortgage financings and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately purchase money Indebtedness incurred by any Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease or improvement of the respective property that is (real or personal, and whether through the subject direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof; provided that, the amount of Indebtedness incurred pursuant to this Section 6.01(i), when combined with the aggregate principal amount of Indebtedness incurred pursuant to (i) Section 6.01(h) and Sections 6.01(i) and 6.01(j) of the ABL Credit Agreement, and (ii) the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03 and Section 6.03(b) of the ABL Credit Agreement, shall not apply for purposes of calculating Permitted Indebtedness under this clause exceed an aggregate principal amount equal to $37,000,000 at any time outstanding;
(j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments)[reserved];
(k) [Reserved]funded intercompany loans and advances from CGHL and members of the NA Group to the Loan Parties and the Subsidiaries entered into or made after the Closing Date; provided, that such Indebtedness to the greatest extent permitted by applicable law (with Holdings to advise the Administrative Agent in reasonable detail of any limitations under applicable law), (i) shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent, and (ii) such Indebtedness (and all interest thereon and all fees, expenses, and other amounts payable in respect thereof) shall only be payable in kind, except that the terms of such subordination shall permit the making of Permitted Foreign Cash Transfers;
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as by any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable, (ii) Party of any Indebtedness or obligations of the Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, Agreement and (iiiii) by any Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(v)); (iv) by any Restricted Subsidiary that is not a Loan Party of Indebtedness of another Restricted Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided provided, that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(l) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinatedObligations;
(om) Indebtedness arising from agreements of Borrower Holdings or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment Acquisition or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing such acquisition; provided, that the aggregate amount at any such Permitted Business Acquisitiontime outstanding under this Section 6.01(m) shall not exceed $5,000,000;
(pn) Indebtedness supported by a Letter in respect of Creditletters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in a principal amount not respect of other Indebtedness) in excess the ordinary course of the stated amount of such Letter of Creditbusiness;
(qo) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (i) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(tp) unsecured Indebtedness in respect of obligations of any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Swap Agreements;
(uq) Indebtedness representing deferred compensation to employees, directors and officers employees of Holdings or any Subsidiary incurred in the ordinary course of business;
(vr) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business[reserved];
(ws) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents[reserved];
(xt) Indebtedness consisting incurred on behalf of, or representing Guarantees of promissory notes issued by Indebtedness of, joint ventures in an amount not in excess at any one time outstanding, when combined with the Borrower or total amount of any other Restricted Subsidiary Investments in joint ventures made pursuant to current or former officers, managers, directors Section 6.04(bb) and consultants thereof or employees, their respective estates or family members Indebtedness incurred and Investments made pursuant to finance the purchase or redemption of Equity Interests Sections 6.01(w) and 6.04(cc) of the Borrower ABL Credit Agreement, of the greater of $10,000,000 or any Parent Entity permitted by 1.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 6.065.04;
(yu) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;[reserved]
(zv) Indebtedness consisting of obligations of Holdings or any Subsidiary under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries such person in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; and
(ccw) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbv) of this Section 6.01above. For purposes of determining compliance with this Section 6.01, :
(A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (Bi) in the event that an item of Indebtedness Indebtedness, Disqualified Stock or Preferred Stock (other than or any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bbportion thereof) meets the criteria of another category one or more of Permitted the categories of permitted Indebtedness described in Section 6.01 clauses (other than Sections 6.01(a), a) through (b), (mw) or (bb))above, the Borrower mayBorrowers shall, in its their sole discretion, reclassify classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness, Disqualified Stock or Preferred Stock (or any portion thereof) in any manner and at any time that complies with this Section 6.01; and
(ii) the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date that such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such item refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of Indebtedness such refinancing, such Dollar-denominated restriction shall be treated deemed not to have been exceeded so long as having been the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred or existing pursuant to in connection with such other clauserefinancing.
Appears in 1 contract
Indebtedness. Incur, create create, assume or assume cause to exist any Indebtedness, except:
(a) any Indebtedness listed on Schedule 6.01(a) and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness pursuant to Hedge Agreements other than for speculative purposes;
(d) (i) so long as no Default Indebtedness existing on the Closing Date (provided that any such Indebtedness that is (x) not intercompany Indebtedness and (y) in excess of $3,000,000 individually or Event in excess of Default has occurred and is continuing or would result from $10,000,000 in the incurrence of such Indebtednessaggregate shall be set forth on Schedule 6.01), other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio DebtIndebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Parent Borrower or any Subsidiary);
(eb) Indebtedness created hereunder (including pursuant to Section 2.19) and under the other Loan Documents;
(c) Indebtedness of the Parent Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Parent Borrower or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between of the Parent Borrower to any Subsidiary and of any Subsidiary to the Parent Borrower or among the Borrower and the Restricted Subsidiaries or between and among Restricted Subsidiariesany other Subsidiary; provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Section 6.04(b) and (ii) Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Subsidiary Loan Party is owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) such Indebtedness shall be subordinated to the Obligations pursuant under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J or on substantially identical subordination terms or on other subordination terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent (at the direction of the Required Lenders) and the Borrowers;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit funds in the ordinary course of business or purchase cards) is extinguished within 10 Business Days after notification is received by the Borrower of its incurrence and (iii) any other cash management or treasury services services, in each case entered into in the ordinary course of business;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date (including any Exempted Subsidiary at such time as it becomes a Subsidiary) or a person merged, amalgamated or consolidated with the Parent Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise assumed by the Parent Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition; provided, in each casemerger, (1) no Event of Default shall have occurred amalgamation or consolidation), where such acquisition, merger, amalgamation or consolidation is not prohibited by this Agreement and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness was not incurred in contemplation of such acquisition, merger, amalgamation or assumed is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness consolidation and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness; provided that at the time of the incurrence or assumption of any Indebtedness pursuant to clause ;
(i) above (A) Indebtedness in respect of retail store lease obligations and after giving effect thereto), the aggregate outstanding amount of (B) Capitalized Lease Obligations and other Indebtedness incurred under this Section 6.01(i) together with by the Parent Borrower or any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03, the greater of (i) $100.0 million and (ii) 7.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately Subsidiary prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (i) such Indebtedness shall be incurred or within 270 days after the acquisition, lease lease, construction, installation, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, repair, replacement or improvement, in an aggregate outstanding principal amount that is immediately after giving effect to the subject incurrence of such Indebtedness and (ii) the Remaining Present Value use of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each casethereof, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(m) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $625.0 million plus (B) together with the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent Term Debtother Indebtedness outstanding pursuant to this Section 6.01(i)(B), in each case permitted would not exceed the greater of (x) $75,000,000 and (y) 1.50% of Consolidated Total Assets;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Term Loan Credit Agreement as in effect on Parent Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction, together with the Closing Date aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(j), would not exceed the greater of (x) $100,000,000 and (y) 2.00% of Consolidated Total Assets and (ii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(n) Guarantees (i) of the Indebtedness of the Borrower described in clause (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject of the foregoing;
(k) Indebtedness of the Parent Borrower or any Subsidiary, in an aggregate outstanding principal amount that, immediately after giving effect to the ABL/Term incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of (x) $50,000,000 and (y) 1.00% of Consolidated Total Assets; provided, further, that any such Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Intercreditor Agreement Party, together with any Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Party pursuant to Section 6.01(x) or 6.01(aa), does not exceed at any time outstanding the greater of (x) $100,000,000 and (y) 2.00% of Consolidated Total Assets;
(i) Indebtedness of the Parent Borrower or any Subsidiary in an aggregate outstanding principal amount, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(l), not greater than 100% of the amount of net cash proceeds received by the Parent Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in the each case of Term Loan Obligations(x) and (y), other than proceeds from the sale of Equity Interests to, or other intercreditor agreement(s) substantially consistent with and no less favorable contributions from, the Parent Borrower or any of its Subsidiaries), to the Lenders in any material respect than extent such net cash proceeds do not constitute Excluded Contributions or increase the ABL/Term Loan Intercreditor AgreementCumulative Credit, as applicable, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(m) Guarantees (i) by the Parent Borrower or any Subsidiary Loan Party of any Indebtedness of the Parent Borrower or any other Subsidiary Loan Party permitted to be incurred under this Agreement, (iiiii) by the Parent Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 and (other than Section 6.04(t)); (iviii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t))Party; provided that Guarantees by the Parent Borrower or any other Subsidiary Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(on) Indebtedness arising from agreements of the Parent Borrower or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase or acquisition price or similar obligationsobligations (including earn-outs), in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment other Investments or the disposition of any business, assets or Subsidiaries a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all Agreement or any portion of such business, assets or Subsidiaries for a transaction consummated prior to the purpose of financing any such Permitted Business AcquisitionClosing Date;
(po) Indebtedness supported by a Letter in respect of Creditletters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in a respect of other Indebtedness) in the ordinary course of business;
(i) Indebtedness of the Parent Borrower and the Subsidiary Loan Parties in an aggregate principal amount not to exceed at the time of incurrence the Incremental Amount available at such time; provided that (A) the incurrence of any Indebtedness pursuant to this clause (p)(i) shall be subject to the requirements applicable to Incremental Term Loans (with all references therein to “Incremental Term Loans” deemed a reference instead to “Pari Debt”) set forth in Sections 2.19(b)(iii) (other than with respect to bona fide revolving credit facilities), (iv) (other than with respect to bona fide revolving credit facilities), (vi), (vii) (other than with respect to bona fide revolving credit facilities) and (viii), and (B) the incurrence of any Indebtedness for borrowed money in the form of (x) term loans, (y) bonds or (z) revolving credit facilities in an aggregate committed amount in excess of $250,000,000, in each case incurred within twenty-four (24) months of the stated amount Closing Date that are secured by Liens on the Collateral that are Other First Liens shall be subject to the MFN Protection (with all references therein to “Incremental Term Loans” deemed a reference instead to “Pari Debt”) and (C)(i) in the case of such Letter Indebtedness secured by Liens on the Collateral that are (or are intended to be) junior in priority to the Liens on the Collateral securing the Obligations, such Liens shall be subject to a Permitted Junior Intercreditor Agreement and (ii) in the case of Creditsuch Indebtedness secured by Liens on the Collateral that are (or are intended to be) pari passu with the Liens on the Collateral securing the Obligations, such Liens shall be subject to a Permitted Pari Passu Intercreditor Agreement; and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(q) Indebtedness incurred in the ordinary course of business in respect of obligations of the Parent Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(r) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Parent Borrower (or, to the extent such work is done for the Parent Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(s) obligations in respect of Cash Management Agreements incurred in the ordinary course of business;
(t) [reserved];
(u) Indebtedness issued by the Parent Borrower or any Subsidiary to current or former officers, directors and employees thereof or any Parent Entity, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower or any Parent Entity permitted by Section 6.06;
(v) Indebtedness of the Parent Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Parent Borrower and its Subsidiaries;
(w) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(rx) (i) so long as no Default or Event Indebtedness of Default has occurred and is continuing or would result from Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such IndebtednessIndebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness so long as outstanding pursuant to this Section 6.01(x), would not exceed the Fixed Charge Coverage Ratio, greater of (x) $50,000,000 and (y) 1.00% of Consolidated Total Assets on a Pro Forma BasisBasis for the then most recently ended Test Period; provided, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) further, that any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto)Indebtedness, the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts Indebtedness incurred under by a Subsidiary that is not a Subsidiary Loan Party pursuant to Section 6.01(i6.01(k) or 6.01(aa), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed at any time outstanding the greater of (x) $50.0 million100,000,000 and (y) 2.00% of Consolidated Total Assets;
(s) (iy) Indebtedness consisting of Foreign Subsidiaries and obligations of the Parent Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder;
(iiz) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the ventures in an aggregate outstanding principal amount of Indebtedness incurred pursuant outstanding that, immediately after giving effect to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(z), would not exceed the greater of (x) $50,000,000 and (y) 1.00% of Consolidated Total Assets;
(i) $45.0 million Indebtedness of the Parent Borrower or any Subsidiary so long as immediately after giving to the incurrence of such Indebtedness and to the use of the proceeds thereof, the Consolidated Fixed Charge Coverage Ratio is no less than 2.00 to 1.00 calculated on a Pro Forma Basis for the then most recently ended Test Period and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereof; andprovided that any such Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Party, together with any Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Party pursuant to Section 6.01(k) or 6.01(x), does not exceed at any time outstanding the greater of (x) $100,000,000 and (y) 2.00% of Consolidated Total Assets;
(i) Indebtedness under the Farm Credit Canada Facility up to a maximum aggregate principal amount of $40,000,000; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(cc) all premium (if any, including tender premiums)) expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (bbaa) above or refinancings thereof; and
(i) unsecured Indebtedness owing by any Loan Party to a Captive Insurance Subsidiary in an amount not to exceed the Investments made by the Parent Borrower and its Subsidiaries in such Captive Insurance Subsidiary from and after the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness. For purposes of determining compliance with this Section 6.016.01 or Section 6.02, the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date on which such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), accrued interest, defeasance costs and other costs and expenses incurred in connection with such refinancing. For Further, for purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of Permitted Indebtedness described in Section 6.01(a) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(a), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.referen
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Indebtedness. Incur, create create, assume or assume permit to exist any Indebtedness, except:
(a) Indebtedness existing on the Closing Date in an amount not to exceed $1.0 million and (other than in the case of any Indebtedness listed existing letters of credit to be replaced with Letters of Credit issued hereunder) set forth on Schedule 6.01(a) 6.01 and any Permitted Refinancing Indebtedness in respect thereofincurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with Holdings or any Subsidiary);
(b) Indebtedness created hereunder or and under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Revolving Commitments and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(c) Indebtedness of Holdings and the Subsidiaries pursuant to Hedge Swap Agreements other than for speculative purposespermitted by Section 6.13;
(d) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness secured by Liens permitted by Section 6.02(u) so long as, on a Pro Forma Basis, the Senior Secured Leverage Ratio is not greater than 5.25:1.00 (the “Leverage Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Leverage Ratio Debt;
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ ' compensation, health, disability or other employee benefits or property, casualty or liability insurance (including self-insurance) to the Borrower Holdings or any of the other Restricted Subsidiaries Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ ' compensation claims, such obligations shall be are reimbursed not later than 30 days following such incurrence;
(fe) intercompany Indebtedness between or among of the Borrower to any Subsidiary and of any Subsidiary to the Restricted Subsidiaries Borrower or between and among Restricted Subsidiaries; any other Subsidiary, provided that (i) Indebtedness owing by of any Restricted Subsidiary of the Borrower that is not a Loan Party to the Borrower or another Subsidiary Loan Party is permitted under Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owing by the Borrower or of any other Subsidiary Loan Party to any Restricted Subsidiary that is not a Loan Party is (the "Subordinated Intercompany Debt") shall be subordinated to the Obligations pursuant on terms reasonably satisfactory to customary subordination provisionsthe Administrative Agent;
(gf) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, case provided in -95- the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(ig) Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient fundsfunds in the ordinary course of business or other cash management services in the ordinary course of business, so long as provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within 10 three Business Days after notification is received by the Borrower of its incurrence and (iiiy) any other cash management such Indebtedness in respect of credit or treasury services entered in the ordinary course of businesspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness incurred of a Subsidiary acquired after the Closing Date or a corporation merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with a Permitted Business Acquisition; providedthe acquisition of assets, which Indebtedness in each case, (1) no Event exists at the time of Default shall have occurred such acquisition, merger or consolidation and be continuing immediately before is not created in contemplation of such Permitted Business Acquisition event and where such acquisition, merger or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (2) the Borrower shall be able to incur $1 of Ratio Debt, (3)(x) if such Indebtedness incurred or assumed consolidation is First Lien Debt, the First Lien Leverage Ratio shall not exceed the Closing Date First Lien Leverage Ratio and (y) if such Indebtedness incurred or assumed is secured Indebtedness other than First Lien Debt, the Senior Secured Leverage Ratio shall not exceed 5.25:1.00, in each case, on a Pro Forma Basis immediately after giving effect to such incurrence or assumption of Indebtedness permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; , provided that the aggregate principal amount of such Indebtedness at the time of the incurrence or assumption of any Indebtedness pursuant to clause (i) above (of, and after giving effect theretoto, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), the aggregate outstanding amount paragraph (i) of Indebtedness incurred under this Section 6.01(i) together with any amounts incurred under Section 6.01(r), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(j) Capital Lease Obligations, Indebtedness incurred with respect to installations, repairs, improvement 6.01 and removal of Real Property, purchase money Indebtedness, Indebtedness with respect to mortgage financings, and Indebtedness with respect to additions or improvements to Real Property in an aggregate outstanding principal amount not to exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto), and together with the Remaining Present Value of outstanding leases entered into pursuant to permitted under Section 6.03), the greater of (i) $100.0 million and (ii) 7.0would not exceed 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred acquisition, merger or consolidation, such assumption or such incurrence, as applicable, for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that ;
(i) such Capital Lease Obligations, mortgage financings and purchase money Indebtedness shall be incurred by Holdings or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the property respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that is at the subject time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of such Indebtedness this Section 6.01, this paragraph (i) and (ii) the Remaining Present Value of outstanding leases entered into pursuant to Section 6.03 shall not apply for purposes of calculating Permitted Indebtedness under this clause (j) or permitted Sale and Lease-Back Transactions under Section 6.03 if the proceeds of the related Sale and Lease-Back Transactions are used to prepay Term Loans or Revolving Loans or any Incremental Revolving Commitments (in each case, to the extent commitments in respect thereof are permanently reduced by the amount of such prepayments);
(k6.03) [Reserved];
(l) other unsecured Indebtedness; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (l) shall would not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $150.0 million and (ii) 9.0exceed 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements financial statements have been delivered pursuant to Section 5.04;
(mj) Indebtedness consisting Capital Lease Obligations incurred by Holdings or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(ik) Term Loan Obligations other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of $50.0 million;
(Al) $625.0 million plus (B) Indebtedness of the Borrower pursuant to the Senior Notes in an aggregate principal amount that is not in excess of the sum of $300.0 million and any Incremental Term Loans or Incremental Equivalent Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date and (ii) Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness in the form of the foregoing IndebtednessPermitted Senior Debt Securities;
(nm) Guarantees (i) by the Loan Parties of the Indebtedness of the Borrower described in clause paragraph (m) of this Section 6.01 so long as any Liens securing the Term Loan Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement (in the case of Term Loan Obligations) or other intercreditor agreement(s) substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, as applicable1), (ii) by any Loan Party of any Indebtedness of the Borrower or any other Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Borrower or any Loan Party of Indebtedness otherwise expressly permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t6.04(b)); , (iv) by any Restricted Foreign Subsidiary that is not a Loan Party of Indebtedness of another Restricted Foreign Subsidiary that is not a Loan Party Party; provided that all Foreign Subsidiaries may guarantee obligations of other Foreign Subsidiaries under ordinary course cash management obligations, and (v) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s6.01(a), (k) to the extent such Guarantees are permitted by Section 6.04 or (other than Section 6.04(t)u); provided that Guarantees by Borrower or any other Loan Party under this clause (nSection 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations on terms consistent with those used, or to at least the same extent as such underlying Indebtedness is subordinatedbe used, for Subordinated Intercompany Debt;
(on) Indebtedness arising from agreements of Borrower Holdings or any of the other Restricted Subsidiaries Subsidiary providing for indemnification, contribution, earn-outindemnifcation, adjustment of purchase or acquisition price price, earn outs or similar obligations, in each case, incurred or assumed in connection with the Closing Date Transactions, any Permitted Business Acquisition, Permitted Investment or the disposition of any business, assets or Subsidiaries not prohibited by this Agreementa Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries a Subsidiary for the purpose of financing any such acquisition;
(o) Indebtedness in connection with Permitted Business AcquisitionReceivables Financings; provided that the proceeds thereof are applied in accordance with Section 2.11(c);
(p) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $30.0 million;
(q) [intentionally omitted];
(r) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(qs) [intentionally omitted];
(t) Indebtedness consisting of (i) Permitted Senior Debt Securities to the financing of insurance premiums or (ii) take or pay obligations contained extent the Net Proceeds in supply arrangements, in each case, in the ordinary course of businessrespect thereof are actually utilized to repay Term Borrowings;
(r) (i) so long as no Default or Event of Default has occurred and is continuing or would result from the incurrence of such Indebtedness, other Indebtedness so long as the Fixed Charge Coverage Ratio, on a Pro Forma Basis, is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt; provided that at the time of the incurrence of any Indebtedness pursuant to clause (i) above (and after giving effect thereto), the aggregate outstanding amount of Indebtedness incurred under this Section 6.01(r) together with any amounts incurred under Section 6.01(i), in each case, by Restricted Subsidiaries that are not Guarantors does not exceed $50.0 million;
(s) (iu) Indebtedness of Foreign Subsidiaries and (ii) Indebtedness for working capital purposes incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) shall not exceed, at the time of incurrence of such Indebtedness (and after giving effect thereto) the greater of (i) $45.0 million and (ii) 2.50% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services so long as such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not on ordinary business terms in connection with the borrowing of money or any Hedge Agreements;
(u) Indebtedness representing deferred compensation to employees, directors and officers incurred in the ordinary course of business;
(v) Indebtedness arising from customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(w) Indebtedness consisting of reimbursement obligations related to bank guarantees to the extent that such obligations are collateralized by cash or cash equivalents;
(x) Indebtedness consisting of promissory notes issued by the Borrower or any other Restricted Subsidiary to current or former officers, managers, directors and consultants thereof or employees, their respective estates or family members to finance the purchase or redemption of Equity Interests of the Borrower or any Parent Entity permitted by Section 6.06;
(y) Guarantees by the Borrower or any other Restricted Subsidiary of any lease or sublease permitted hereunder of real property entered into by the Borrower or any other Restricted Subsidiary in the ordinary course of business;
(z) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower or any of the other Restricted Subsidiaries in connection with the Closing Date Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) unsecured Indebtedness in a principal an aggregate amount not to exceed an amount equal to the Net Cash Proceeds received from the issuance or sale of Equity Interests (other than Disqualified Stock or Permitted Cure Securities) of the Borrower or $10.0 million outstanding at any of the other Restricted Subsidiaries (other than any such sale to Holdings or any of the Restricted Subsidiaries) and any cash or cash equivalents consisting of a capital contribution received from equityholders (other than Holdings or any Restricted Subsidiary) of the Borrower or any of the other Restricted Subsidiaries (other than in respect of Disqualified Stock or any equity contributed as Permitted Cure Securities or any such proceeds used in connection with Section 6.06(d) or Section 6.09(b)(i)(3) or used to fund charges, expenses, accruals or reserves in accordance with clause (k) of the definition of “Consolidated Net Income”) so long as such Indebtedness matures at least 91 days after the Maturity Date;
(bb) Indebtedness in respect of Senior Unsecured Notes and any Permitted Refinancing Indebtedness in respect thereoftime; and
(ccv) all premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses paragraphs (a) through (bbu) of this Section 6.01above. For purposes of determining compliance with this Section 6.01Notwithstanding anything to the contrary herein, (A) Indebtedness need Holdings shall not be permitted solely by reference to one category of Permitted incur any Indebtedness described in Section 6.01(aother than Indebtedness under Sections 6.01(b) through Section 6.01(cc) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (other than any item of Indebtedness set forth in Sections 6.01(am), (b), (m) or (bb) meets the criteria of another category of Permitted Indebtedness described in Section 6.01 (other than Sections 6.01(a), (b), (m) or (bb)), the Borrower may, in its sole discretion, reclassify such item of Indebtedness and such item of Indebtedness shall be treated as having been incurred or existing pursuant to such other clause.
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