Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1. (b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"): (i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000; (ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility; (iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities; (iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness"; (v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v); (vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi); (vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013; (viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof; (ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed; (x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary; (xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock; (xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 3 contracts
Sources: Indenture (Uag Connecticut I LLC), Indenture (HBL LLC), Indenture (Uag Mentor Acquisition LLC)
Limitation on Indebtedness. (a) The Company Holdings will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company that Holdings or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Holdings and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness Incurred by Holdings and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (c) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof), (d) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and any Refinancing Indebtedness in respect thereof and (e) pursuant to the Company Senior ABL Facility, in a maximum principal amount for all such Indebtedness at any time outstanding under this clause (b)(i)(I) not exceeding in the Company's Credit Agreement aggregate the amount equal to the sum of (A) $2,330.0 million plus (B) the greater of (x) $1,900.0 million and (y) an amount equal to (1) the North American Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(ix), plus (C) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness,” in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including any refinancing accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (as defined belowII) Indebtedness Incurred by Holdings and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations, (c) constituting Rollover Indebtedness and (d) in respect of such Indebtedness) Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9, in an aggregate principal amount at any one time for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to exceed $920,000,000 in any case under clause (i) of the Credit Agreement or definition of “Maximum Incremental Facilities Amount,” treating Additional Obligations, Refinancing Indebtedness, Rollover Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect of letters Indebtedness Incurred in reliance on clause (i) of credit under the Credit Agreement, definition of “Maximum Incremental Facilities Amount” (and guarantees by Guarantors Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect thereof; providedof such Additional Obligations, howeverRefinancing Indebtedness, that Rollover Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), together with Refinancing Indebtedness in respect of the foregoing amount shall be reduced by Indebtedness described in subclauses (a), (b) the U.S. dollar equivalent of any loan notes referred to in clause (xic) and (d) of this Section 1008(b) not collateralized by cash clause (II), plus, without duplication of incremental amounts included in excess the definition of $40,000,000 and (b) “Refinancing Indebtedness,” the aggregate amount of Indebtedness incurred pursuant to clause all fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such Refinancing Indebtedness;
(ii) Indebtedness (A) of the Company any Restricted Subsidiary to Holdings, or (B) of Holdings or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to Holdings or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) (A) Indebtedness of represented by the Company Senior Notes, (B) any Indebtedness (other than the Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness (or the Exchange Securitiesunutilized commitments) described in this Subsection 8.1(b)(iii) or Subsection 8.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person, at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $300.0 million and not otherwise referred to in this definition 5.0% of "Permitted Indebtedness"Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence face amount of such Indebtedness by letter of credit or (B) consisting of accommodation guarantees for the Company benefit of trade creditors of Holdings or other obligor not permitted by this clause (v)any of its Restricted Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by Holdings or any Restricted Subsidiary owing to the Company of Indebtedness or another any other obligation or liability of Holdings or any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by Holdings or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of Holdings or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of Holdings or any Restricted Subsidiary (other than any Indebtedness Incurred by Holdings or such Indebtedness by Restricted Subsidiary, as the obligor not permitted by case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of Holdings or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of provided that such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred is extinguished in the ordinary course of business business), or (B) consisting of the Company or any Restricted Subsidiary; providedguarantees, howeverindemnities, that such Currency Hedging Agreements do not increase the Indebtedness obligations in respect of earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of Holdings or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which Holdings or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an aggregate principal amount at any time outstanding not to exceed the greater of $250.0 million and 4.50% of Consolidated Total Assets or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by Holdings as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), Holdings may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) Holdings or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or assets Person, or any merger or consolidation of a any Person with or into Holdings or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into Holdings or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) Holdings would have a Consolidated Total Leverage Ratio equal to or less than 5.00:1.00 or (2) the Consolidated Total Leverage Ratio of Holdings would equal or be less than the Consolidated Total Leverage Ratio of Holdings immediately prior to giving effect thereto; provided, further, that if, at Holdings’ option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection Contribution Indebtedness and any Refinancing Indebtedness with the tender offer for all of such Capital Stockrespect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of the Sytner Group plc shares of Disqualified Stock issued in accordance with Subsection 8.1(a), and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of its Subsidiaries Holdings or any Restricted Subsidiary in an aggregate principal amount not to exceed $90,000,000 at any one timetime outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets;
(xiv) Indebtedness of Holdings or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into Holdings or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets; and
(xv) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to (I) the greater of (x) $400.0 million and (y) 7.0% of Foreign Consolidated Total Assets plus (II) an amount equal (but not less than zero) to (A) the Foreign Borrowing Base less the Foreign Borrowing Base as calculated on March 31, 2015 less (B) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) in excess of the amount set forth in the immediately preceding clause (A) plus (III) in the event of any refinancing of any Indebtedness Incurred under this clause (xv), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Subsection 8.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Subsection 8.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (xiiiii) obligations in the event that Indebtedness Incurred pursuant to Subsection 8.1(b) meets the criteria of more than one of the types of Indebtedness described in Subsection 8.1(b), Holdings, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Subsection 8.1(b) (including in part under one such clause and in part under another such clause); provided that (if Holdings shall so determine) any Indebtedness Incurred pursuant to Subsections 8.1(b)(iv), 8.1(b)(vii), 8.1(b)(xiii), 8.1(b)(xiv) or 8.1(b)(xv) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Subsection 8.1(a) from and after the first date on which Holdings or any Restricted Subsidiary could have Incurred such Indebtedness under Subsection 8.1(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under Subsection 8.1(a), Holdings, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under Subsection 8.1(a) and the remainder of such Indebtedness as having been Incurred under Subsection 8.1(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of letters Indebtedness outstanding under any subclause of credit Subsection 8.1(b), including for purposes of any determination of the “Maximum Incremental Facilities Amount,” shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness, (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on a basket measured by reference to a percentage of Consolidated Total Assets at the time of Incurrence or Foreign Consolidated Total Assets at the time of Incurrence, and such refinancing would cause the percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, restriction to be exceeded if calculated based on the Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other credit support provided costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (vii) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on a basket measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the Company and its Restricted Subsidiaries in extent the ordinary course principal amount of business provided that such newly Incurred Indebtedness does not exceed the obligations under principal amount of such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;Indebtedness being
Appears in 3 contracts
Sources: Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.), Credit Agreement (Univar Inc.)
Limitation on Indebtedness. (a) The Company Parent Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume, guarantee or otherwise in Incur any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Consolidated Vehicle Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoingforegoing Section 8.1(a), the Company and, to the extent specifically set forth below, the Parent Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Consolidated Vehicle Indebtedness")::
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate a maximum principal amount at any one time outstanding not exceeding in the aggregate the amount equal to exceed $920,000,000 the sum of (A) an amount equal to the Borrowing Base, plus (B) in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent event of any loan notes referred to in clause (xi) refinancing of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) any such Indebtedness, the aggregate amount of Indebtedness fees, underwriting discounts, premiums and other costs and expenses incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Parent Borrower or (B) of the Company Parent Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided, that any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Parent Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this clause (ii);
(iii) Indebtedness consisting of accommodation guarantees for the benefit of trade creditors of the Company pursuant to the Securities Parent Borrower or the Exchange Securities and Indebtedness any of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;its Restricted Subsidiaries; and
(iv) Indebtedness of (A) Guarantees by the Company Parent Borrower or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness or any other obligation or liability of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company Parent Borrower or any Restricted Subsidiary against fluctuations (other than any Indebtedness Incurred by the Parent Borrower or such Restricted Subsidiary, as the case may be, in interest rates in respect violation of this Section 8.1), or (B) without limiting Section 8.2, Indebtedness of the Company Parent Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Parent Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the Parent Borrower or such Restricted Subsidiary, as long as the case may be, in violation of this Section 8.1).
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 8.1, (i) any other obligation of the obligor on such obligations do not exceed Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 8.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the aggregate extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 8.1(b) above, the Parent Borrower, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Section 8.1(b) above (including in part under one such clause and in part under another such clause); and (iii) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP.
(d) For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the Dollar Equivalent principal amount of such Indebtedness then outstandingIncurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit or deferred draw Indebtedness, provided that (x) the Dollar Equivalent principal amount of any such Indebtedness outstanding on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date, (by) under any Currency Hedging Agreementsif such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), relating 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 (whichever is higher) of such Indebtedness of the Company or any Restricted Subsidiary and/or being refinanced plus (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason aggregate amount of fees, indemnities underwriting discounts, premiums and compensation other costs and expenses (including accrued and unpaid interest) incurred or payable under in connection with such Currency Hedging Agreements or refinancing and (cz) under any Commodity Price Protection Agreements which do not increase the Dollar Equivalent principal amount of Indebtedness or other obligations denominated in a foreign currency and Incurred pursuant to the Senior Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Parent Borrower’s option, (i) the Closing Date, (ii) any date on which any of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable respective commitments under such Commodity Price Protection AgreementsSenior Credit Facility shall be reallocated between or among facilities or subfacilities hereunder or thereunder, and guarantees by Guarantors in respect thereof;
or on which such rate is otherwise calculated for any purpose thereunder, or (ixiii) Indebtedness the date of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the such Incurrence. The principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary Incurred to provide for indemnification, customary purchase price closing adjustments, earn-outs or refinance other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notesIndebtedness, if anyIncurred in a different currency from the Indebtedness being refinanced, issued shall be calculated based on the currency exchange rate applicable to a holder of the shares of Capital Stock of Sytner Group plc currencies in connection with which such respective Indebtedness is denominated that is in effect on the tender offer for all date of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;refinancing.
Appears in 3 contracts
Sources: Credit Agreement (Hertz Corp), Credit Agreement (Hertz Corp), Credit Agreement
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Material Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that (x) the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Material Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00 and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding clause (x) by Restricted Subsidiaries that are not Loan Parties shall not exceed the greater of $300.0 million and 7.0% of Consolidated Tangible Assets at any time outstanding.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding including, but not to exceed $920,000,000 in any case under the Credit Agreement or limited to, in respect of letters of credit under the or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than pursuant to any Credit AgreementFacility, and guarantees by Guarantors (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof; provided, howevereither (I) in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $3,200.0 million, that the foregoing amount shall be reduced by plus (aB) the U.S. dollar equivalent amount equal to the greater of (x) $1,300.0 million and (y) an amount equal to (1) the Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Restricted Subsidiaries and then outstanding pursuant to subsection 7.1(b)(ix), plus (C) in the event of any loan notes referred to in clause (xi) refinancing of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing or (II) in an unlimited amount, if on the date of the Incurrence of such Indebtedness incurred pursuant (other than any such Refinancing Indebtedness), after giving effect to clause such Incurrence (xiior, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness (such committed amount, a “Ratio Tested Committed Amount”), in which case such Ratio Tested Committed Amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause) the Consolidated Secured Leverage Ratio would be equal to or less than 4.75:1.00; and (in the case of this Section 1008(bsubclause (II)) in excess of $20,000,000any Refinancing Indebtedness with respect to any such Indebtedness (or unutilized commitment);
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Company Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that, in the case of this subsection 7.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this subsection 7.1(b)(ii);
(iii) Indebtedness of represented by the Company Senior Notes issued on the Restatement Effective Date (and any Senior Notes issued in respect thereof or in exchange therefor), any Indebtedness (other than the Indebtedness under the Senior Credit Facilities described in subsection 7.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Securities or the Exchange Securities Restatement Effective Date and any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness (or the Exchange Securitiesunutilized commitments) described in this subsection 7.1(b)(iii) or subsection 7.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person at any time outstanding on pursuant to this clause (iv) shall not exceed an amount equal to the initial Issue Date greater of $250.0 million and not otherwise referred to in this definition 5.4% of "Permitted Indebtedness"Consolidated Tangible Assets;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this subsection 7.1), or (B) shall be deemed without limiting subsection 7.2, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (visubsection 7.1);
(vii) guarantees Indebtedness of the Borrower or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business business, or (aB) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business business, assets or assets of a Restricted SubsidiaryPerson;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiiviii) Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations Restricted Subsidiary in respect of (A) letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, including in respect of liabilities or obligations of franchisees, (C) Hedging Obligations, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital, or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the obligations Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this subsection 7.1 for so long as such letters Indebtedness shall be so recourse, and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of credit are supported the preceding subclause (1), the Borrower may classify such Indebtedness in whole or in part as Incurred under this subsection 7.1(b)(ix);
(x) Indebtedness of (A) the Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of any assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or (B) any Person that is acquired by letters or merged or consolidated with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of credit such acquisition, merger or consolidation, after giving effect thereto, either (1) (x) the Consolidated Total Leverage Ratio of the Borrower would not exceed 6.75:1.00 or (y) the Consolidated Total Leverage Ratio of the Borrower would equal or be less than the Consolidated Total Leverage Ratio of the Borrower immediately prior to giving effect thereto or (2) (x) the Consolidated Coverage Ratio of the Borrower would be at least 2.00:1.00 or (y) the Consolidated Coverage Ratio of the Borrower would equal or be greater than the Consolidated Coverage Ratio of the Borrower immediately prior to giving effect thereto, and provided, further, that if, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this subsection 7.1(b)(x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $200.0 million and 4.5% of Consolidated Tangible Assets;
(xii) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $280.0 million and 6.0% of Consolidated Tangible Assets;
(xiv) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with subsection 7.1(a), and any Refinancing Indebtedness with respect thereto;
(xv) Indebtedness of the Borrower or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $300.0 million and 7.0% of Consolidated Tangible Assets; and
(xvi) Indebtedness of the Borrower or any Restricted Subsidiary that is (A) secured by a Lien ranking junior to the Lien securing the Term Loan Facility Obligations or (B) unsecured; provided in either case that, on the date of the Incurrence thereof and after giving pro forma effect to such Incurrence, either (1) the Consolidated Total Leverage Ratio of the Borrower shall not exceed 6.75:1.00 or (2) the Consolidated Coverage Ratio of the Borrower shall be at least 2.00:1.00; and provided, further, that if, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this subsection 7.1(b)(xvi); and any Refinancing Indebtedness with respect to any such Indebtedness.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this subsection 7.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this subsection 7.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other credit support similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in subsection 7.1(b), the Borrower, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses or subclauses of subsection 7.1(b) (including in part under one such clause or subclause and in part under another such clause or subclause); provided that (if the Borrower shall so determine) any Indebtedness Incurred pursuant to subsection 7.1(b)(iv), 7.1(b)(xiii), 7.1(b)(xi) or 7.1(b)(xv) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of subsection 7.1(a) from and after the first date on which the Borrower or any Restricted Subsidiary could have Incurred such Indebtedness under subsection 7.1(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under subsection 7.1(a), the Borrower, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under subsection 7.1(a) and the remainder of such Indebtedness as having been Incurred under subsection 7.1(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of Indebtedness outstanding under any clause of subsection 7.1(b), including for purposes of any determination of the “Maximum Incremental Facilities Amount,” shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of subsection 7.1(b) measured by reference to a percentage of Consolidated Tangible Assets at the time of Incurrence, and such refinancing would cause such percentage of Consolidated Tangible Assets to be exceeded if calculated based on the Consolidated Tangible Assets on the date of such refinancing, such percentage of Consolidated Tangible Assets shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness does not exceed an amount equal to the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or provided under payable in connection with such refinancing; and (vii) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of subsection 7.1(b) measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the Credit Agreement;extent the principal amount of such newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
(d) For purposes of determining compliance with any provision of subsection 7.1(b) (or any category of Permitted Liens described in the definition thereof) measured by
Appears in 3 contracts
Sources: Credit Agreement (US Foods Holding Corp.), Term Loan Credit Agreement (US Foods Holding Corp.), Credit Agreement (US Foods Holding Corp.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that (x) the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00 and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding clause (x) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed $150.0 million at any time outstanding.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other credit support than under any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $2,100 million plus (B) (x) the greater of $1,700.0 million and the Borrowing Base less (y) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Domestic Subsidiaries and then outstanding pursuant to subsection 7.1(b)(ix), plus (C) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Borrower or any Restricted Subsidiary to any Restricted Subsidiary; provided that (x) any such Indebtedness owed to any Restricted Subsidiary that is not a Subsidiary Guarantor shall be expressly subordinated in right of payment to all obligations of the obligor with respect to the Term Loans and all Subsidiary Guarantees and provided further that (y) any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the Company issuer thereof not permitted by this subsection 7.1(b)(ii);
(iii) Indebtedness represented by the Senior Second Priority Notes, and its Restricted Subsidiaries the Senior Unsecured Notes issued on the Closing Date (or issued in respect thereof or in exchange therefor), any Indebtedness (other than the Indebtedness described in clause (i) or (ii) above) outstanding on the Closing Date, any Indebtedness represented by Senior Unsecured Notes issued in connection with the payment of PIK Interest (as defined in the ordinary course Senior Unsecured Notes Indenture) and any Refinancing Indebtedness Incurred in respect of business any Indebtedness described in this subsection 7.1(b)(iii) or subsection 7.1(a);
(iv) Purchase Money Obligations and Capitalized Lease Obligations, and any Refinancing Indebtedness with respect thereto; provided that the obligations under aggregate principal amount of such letters Purchase Money Obligations Incurred to finance the acquisition of credit are supported by letters Capital Stock of credit or other credit support issued or provided under any Person at any time outstanding pursuant to this clause shall not exceed an amount equal to the Credit Agreementgreater of $150.0 million and 3.0% of Consolidated Tangible Assets;
Appears in 3 contracts
Sources: Credit Agreement (Hd Supply, Inc.), Credit Agreement (Hd Supply, Inc.), Incremental Agreement (Hd Supply, Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, create, issue, incur, assume, guarantee assume or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents (including pursuant to Sections 2.16 and 2.17 and any Acquired Permitted Refinancing Debt incurred to Refinance such Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.;
(b) Notwithstanding Indebtedness (including Guarantee Obligations thereunder) in respect of the foregoingSenior Interim Loans, the Company andSenior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Refinance such Indebtedness;
(c) Indebtedness of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company Borrower or another Restricted any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is made pursuant to not a Guarantor shall (x) be evidenced by the Intercompany Note or (y) otherwise be outstanding on the Closing Date so long as such Indebtedness is evidenced by an intercompany note substantially in the form attached as Annex A of Exhibit L or otherwise subject to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer subordination terms substantially identical to the Company or a Restricted Subsidiary) shall be deemed subordination terms set forth in Exhibit L, in each case, to be an incurrence of such Indebtedness by the obligor not extent permitted by this clause Requirements of Law and not giving rise to material adverse tax consequences, (vi)ii) any Subsidiary that is not a Guarantor owing to any other Subsidiary that is not a Guarantor and (iii) to the extent permitted by Section 10.5, any Subsidiary that is not a Guarantor owing to the Borrower or any Guarantor;
(viid) guarantees Indebtedness in respect of any Restricted Subsidiary made in accordance with the provisions bankers’ acceptance, bank guarantees, letter of Section 1013;
(viii) obligations of the Company credit, warehouse receipt or any Guarantor similar facilities entered into in the ordinary course of business (aincluding in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims);
(e) pursuant subject to Interest Rate Agreements designed to protect the Company or any compliance with Section 10.5, Guarantee Obligations incurred by (i) Restricted Subsidiary against fluctuations in interest rates Subsidiaries in respect of Indebtedness of the Company Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 10.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 10.1) and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 10.1(e) is subordinated to the Obligations, such Guarantee Obligations 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 and (B) no guarantee by any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such any Permitted Additional Debt (or Indebtedness then outstanding, under clause (b) under any Currency Hedging Agreements, relating to above) shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Obligations substantially on the terms set forth in the Guarantee;
(f) Guarantee Obligations (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 10.5(d), (g), (h), (i), (q), (r) and (s);
(g) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of the Company acquisition, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, or improvement of such fixed or capital assets; (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Closing Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each of the foregoing subclauses (i) and (ii), the Borrower shall be in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenant, as such covenant is recomputed as at the last day of the most recently ended Test Period as if such incurrence had occurred on the first day of such Test Period); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the date hereof listed on Schedule 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiaries) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for after the purpose Closing Date as the result of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any timea Permitted Acquisition; provided that the principal amount of any that:
(A) such Indebtedness permitted under this clause (ix) did not in each case existed at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or such Person became a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligationsat the time such assets were acquired and, in each case, incurred was not created in connection anticipation thereof,
(B) 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 a merger with such Person or any of its Subsidiaries),
(C) (1) the Stock of such Person is pledged to the Collateral Agent to the extent required under Section 9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and a joinder to the Intercompany Note, in each case to the extent required under Section 9.11; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 10.2, equally and ratably secure such Indebtedness assumed with the acquisition or disposition Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred under Section 10.1(g), and
(D) after giving effect to the assumption of any business or assets such Indebtedness, to such acquisition and to any related Pro Forma Adjustment, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant, as such covenant is recomputed as at the last day of a Restricted Subsidiarythe most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(xiii) loan notes, if any, issued any Permitted Refinancing Indebtedness incurred to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of Refinance such Capital StockIndebtedness;
(xiik) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of such Person is pledged to the Collateral Agent to the extent required under Section 9.11(b) and (2) such Person executes a supplement to each of the Sytner Group plc Guarantee, the Security Agreement and the Pledge Agreement and a joinder to the Intercompany Note, in each case to the extent required under Section 9.11;
(B) after giving effect to the incurrence of any such Indebtedness, to such acquisition and to any related Pro Forma Adjustment, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant, as such covenant is recomputed as at the last day of its Subsidiaries the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test Period;
(C) the maturity of such Indebtedness is not earlier than, and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon any event of default) is required prior to, 91 days after the Latest Maturity Date of any Facility hereunder (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company Borrower or any Subsidiary Guarantor except to the extent (1) permitted under Section 10.5 and its Restricted Subsidiaries (2) that after giving effect to the incurrence of any such Indebtedness, to such acquisition and to any related Pro Forma Adjustment, the Borrower shall be in compliance on a Pro Forma Basis with the ordinary course Adjusted Financial Performance Covenant, as such covenant is recomputed as at the last day of business provided that the obligations under most recently ended Test Period as if such letters incurrence and acquisition had occurred on the first day of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreementsuch Test Period;
Appears in 3 contracts
Sources: Credit Agreement (Samson Resources Corp), Fourth Amendment Agreement (Samson Resources Corp), Credit Agreement (Samson Holdings, Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by that the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or would be greater than 2.00:12.00:1.00.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness Incurred pursuant to any Credit Facility (including but not limited to in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $1,200.0 million, plus (B) the greater of (x) $500.0 million and (y) an amount equal to (1) the Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Domestic Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b), plus (C) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company or (B) of the Company under the Company's Credit Agreement (including or any refinancing (as defined below) Restricted Subsidiary to any Restricted Subsidiary; provided, that any subsequent issuance or transfer of any Capital Stock of such IndebtednessRestricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Company or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this clause (ii);
(iii) Indebtedness represented by the Notes (other than any Additional Notes), any Indebtedness (other than the Indebtedness described in clause (ii) above) outstanding on the Issue Date and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iii) or paragraph (a) above;
(iv) Purchase Money Obligations and Capitalized Lease Obligations, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any one time outstanding not exceeding an amount equal to exceed the greater of $920,000,000 100.0 million and 11.5% of Consolidated Tangible Assets;
(v) Indebtedness consisting of accommodation guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) violation of this Section 1008(b6.6), or (B) not collateralized without limiting Section 6.11, Indebtedness of the Company or any Restricted Subsidiary arising by cash reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) violation of this Section 1008(b) in excess of $20,000,0006.6);
(iivii) Indebtedness of the Company or any Restricted Subsidiary under (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds, provided that such Indebtedness is extinguished within five Business Days of its Incurrence, or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any Inventory Facilitybusiness, assets or Person;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(ivviii) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition respect of "Permitted Indebtedness";
(vA) Indebtedness letters of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturitycredit, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company bankers’ acceptances or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing similar instruments or obligations issued, or relating to the Company liabilities or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; providedobligations incurred, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (aincluding those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), or (B) pursuant completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to Interest Rate Agreements designed to protect liabilities or obligations incurred, in the ordinary course of business, or (C) Hedging Obligations, entered into for bona fide hedging purposes, or (D) Management Guarantees, or (E) the financing of insurance premiums in the ordinary course of business, or (F) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary against fluctuations maintains an overdraft, cash pooling or other similar facility or arrangement;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in interest rates connection with, a Financing Disposition or (B) otherwise Incurred in respect of connection with a Special Purpose Financing; provided that (1) such Indebtedness of is not recourse to the Company or any Restricted Subsidiary as that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this covenant for so long as such obligations do not Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this Section 6.6(b)(ix);
(x) Indebtedness of any Person that is assumed by the Company or any Restricted Subsidiary in connection with its acquisition of assets from such Person or any Affiliate thereof or is issued and outstanding on or prior to the date on which such Person was acquired by the Company or any Restricted Subsidiary or merged or consolidated with or into any Restricted Subsidiary (other than Indebtedness Incurred to finance, or otherwise Incurred in connection with, such acquisition), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (A) the Company could Incur at least $1.00 of additional Indebtedness pursuant to paragraph (a) above or (B) the Consolidated Coverage Ratio of the Company would equal or exceed the aggregate principal amount Consolidated Coverage Ratio of the Company immediately prior to giving effect thereto; and any Refinancing Indebtedness with respect to any such Indebtedness then outstanding, Indebtedness;
(b) under any Currency Hedging Agreements, relating to (ixi) Indebtedness of the Company or any Restricted Subsidiary and/or in an aggregate principal amount at any time outstanding not exceeding an amount equal to (iiA) obligations (1) the Foreign Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to purchase or sell assets or properties, in each case, incurred clause (ix) of this paragraph (b) plus (B) in the ordinary course event of business any refinancing of any Indebtedness Incurred under this clause (xi), the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason aggregate amount of fees, indemnities underwriting discounts, premiums and compensation payable under other costs and expenses incurred in connection with such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofrefinancing;
(ixxii) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto; and
(xiii) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $85.0 million and 9.75% of Consolidated Tangible Assets.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 6.6, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 6.6) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in paragraph (b) above, the Company, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of such clauses (including in part under one such clause and in part under another such clause); and (ixiii) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP.
(d) For purposes of determining compliance with any dollar-denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the dollar-equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness, provided that (x) the dollar-equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), 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 $35,000,000 (i) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing and (z) the dollar-equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to a Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, (i) the Issue Date, (ii) any time; provided that date on which any of the respective commitments under such Credit Facilities shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (iii) the date of such Incurrence. The principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary Incurred to provide for indemnification, customary purchase price closing adjustments, earn-outs or refinance other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notesIndebtedness, if anyIncurred in a different currency from the Indebtedness being refinanced, issued shall be calculated based on the currency exchange rate applicable to a holder of the shares of Capital Stock of Sytner Group plc currencies in connection with which such respective Indebtedness is denominated that is in effect on the tender offer for all date of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;refinancing.
Appears in 2 contracts
Sources: Third Supplemental Indenture (Sally Beauty Holdings, Inc.), Second Supplemental Indenture (Sally Beauty Holdings, Inc.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of the Parent Borrower to any Subsidiary and will not cause or permit of any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for Subsidiary Guarantor to the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Parent Borrower or any Guarantor or constitutes Acquired other Subsidiary;
(c) Indebtedness secured by Liens permitted by Section 7.3(g); provided that the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of a Restricted Subsidiary andsuch Indebtedness, with the financial covenants contained in each case, Section 7.1 recomputed as at the Company's Consolidated Fixed Charge Coverage Ratio for last day of the most recent four full recently ended fiscal quarters quarter of the Parent Borrower and its Subsidiaries for which financial statements are available immediately preceding the incurrence of as if such Indebtedness taken as one had been incurred on the first day of each relevant period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of for testing such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000compliance;
(iid) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed the greater of (x) $90,000,000 50,000,000 and (y) 3.0% of Consolidated Total Assets (measured on the date of incurrence of such Capital Lease Obligations) at any one time; time outstanding;
(xiiie) Indebtedness outstanding on the Closing Date and listed on Schedule 7.2(e) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of obligations of any Subsidiary Guarantor;
(g) Indebtedness of the Parent Borrower or its Subsidiaries on account of industrial revenue bonds in an aggregate principal amount not to exceed the greater of (x) $50,000,000 and (y) 3.0% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness) at anyone one time outstanding;
(h) guarantees made in the ordinary course of business by the Parent Borrower or any of its Subsidiaries of lease obligations of their customers in respect of equipment sold by the Parent Borrower or any of its Subsidiaries to a third party and then leased to such customer in an aggregate amount outstanding at any time not to exceed the greater of (x) $50,000,000 and (y) 3.0% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness);
(i) Indebtedness in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries (not otherwise permitted under this Section 7.2) outstanding in the ordinary course of business in an aggregate face amount not to exceed the greater of (x) $50,000,000 and (y) 3.0% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness);
(j) Indebtedness of (i) any Subsidiary that is not a Loan Party to any other Subsidiary that is not a Loan Party and (ii) any Subsidiary Guarantor to any Subsidiary that is not a Loan Party;
(k) Indebtedness of any Foreign Subsidiary or Foreign Subsidiary Holdco to the Parent Borrower or any other Subsidiary (so long as no Default or Event of Default shall have occurred and be continuing at the time of the incurrence of such Indebtedness); provided that (i) the requirements of Section 6.9 are satisfied and (ii) the aggregate principal amount of such Indebtedness at any time outstanding shall not exceed the greater of (A) $150,000,000 and (B) 10.0% of Consolidated Total Tangible Assets (measured on the date of incurrence of such Indebtedness); provided, further, that any Indebtedness permitted by this Section 7.2(k) shall be evidenced by a note or similar instrument and pledged in accordance with Section 6.9 and the Guarantee and Collateral Agreement;
(i) Permitted Unsecured Indebtedness; provided that (x) at the time of, and after giving effect to, the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing and (y) the Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1(b), in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period, and (ii) any guarantee by any Subsidiary in respect of any Permitted Unsecured Indebtedness; provided that (x) no Subsidiary that is not a Loan Party shall guarantee any Permitted Unsecured Indebtedness and (y) any such guarantee in respect of Permitted Unsecured Indebtedness shall be unsecured;
(m) Indebtedness incurred in connection with or in substitution or replacement of a Receivables Transfer Program in an aggregate principal amount not to exceed the greater of (x) $125,000,000 and (y) 7.5% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness);
(i) Permitted Subordinated Indebtedness; provided that the obligations Parent Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1(b), recomputed on a pro forma basis as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) any guarantee by any Subsidiary in respect of any Permitted Subordinated Indebtedness; provided that (x) no Subsidiary that is not a Loan Party shall guarantee any Permitted Subordinated Indebtedness and (y) any such guarantee shall be subordinated to the prior payment in full of the Obligations on the same basis as the related Permitted Subordinated Indebtedness;
(o) unsecured Indebtedness not otherwise permitted by this Section 7.2 in an aggregate principal amount not to exceed the greater of (i) $60,000,000 and (ii) 3.25% of Consolidated Total Assets (measured on the date of incurrence of such Indebtedness);
(p) (i) Obligations under or in respect of interest rate Swap Agreements up to an aggregate notional principal amount not to exceed at any time an amount equal to the Commitments of all the Lenders in the aggregate at such letters time, (ii) Obligations owing under Swap Agreements entered into in order to manage existing or anticipated exchange rate or commodity price risks and not for speculative purposes, (iii) Obligations in respect of credit Swap Agreements entered into in connection with any Permitted Bond Hedge Transaction and (iv) Obligations in respect of Swap Agreements entered into in connection with any Permitted Warrant Transaction;
(q) Indebtedness of any Subsidiary of the Parent Borrower acquired pursuant to the Filtration Acquisition;
(r) Indebtedness in respect of the Convertible Notes; and
(s) Indebtedness of the Parent Borrower and the Restricted Subsidiaries assumed in connection with Permitted Business Acquisitions or similar Investments so long as (i) after giving effect to the assumption of such Indebtedness and such Permitted Business Acquisition on a pro forma basis as of the last day of the most recent period of four consecutive fiscal quarters have been delivered, the Parent Borrower shall be in compliance, on a pro forma basis with the financial covenants contained in Section 7.1(a) and (b), in each case recomputed as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Restricted Subsidiaries for which financial statements are supported available as if such Indebtedness had been incurred on the first day of such period, (ii) before and after giving effect thereto, no Event of Default shall have occurred and be continuing and (iii) any such Indebtedness shall be unsecured or secured only by letters a mortgage, purchase money security interest, Capital Lease Obligation or similar arrangement on the Property acquired in connection with such Permitted Business Acquisition or similar Investment (and any accessions thereto or improvements thereon), and no Lien shall extend to cover any other Property of credit the Parent Borrower or other credit support issued any Subsidiary Guarantor. For purposes of determining compliance with this Section 7.2, (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness described in Section 7.2(a) through (s) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (or provided under any portion thereof) meets the Credit Agreement;criteria of one or more of the categories of permitted Indebtedness described in Sections 7.2(a) through (s), the Parent Borrower shall, in its sole discretion, 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 7.2 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 clauses.
Appears in 2 contracts
Sources: Credit Agreement (CONMED Corp), Credit Agreement (CONMED Corp)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any Restricted Subsidiary to, Incur any Indebtedness; provided, however, that the Borrower or any Restricted Subsidiary may Incur Indebtedness if (i) no Event of its Default shall have occurred and be continuing or would exist immediately after giving effect to such Incurrence and (ii) on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, either (x) the Consolidated Total Leverage Ratio would be no greater than 2.70:1.00 or (y) the Consolidated Net Cash Interest Coverage Ratio is greater than 2.00:1.00 (such Indebtedness, “Ratio Debt”); provided that
(i) the amount of Ratio Debt that may be Incurred by Restricted Subsidiaries tothat are not Loan Parties, createtogether with the Indebtedness Incurred pursuant to Section 6.01(b)(x) by Restricted Subsidiaries that are not Loan Parties and any Refinancing Debt in respect thereof, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable shall not exceed the greater of $325.0 million and 50.0% of Consolidated EBITDA for the payment Relevant Reference Period at any one time outstanding;
(ii) any such Ratio Debt shall not mature earlier than the Latest Maturity Date with respect to the Loans at the time of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence Incurrence of such Indebtedness taken Indebtedness; provided that this clause (ii) shall not apply to Ratio Debt constituting Customary Bridge Loans; and
(iii) as one period of the date such Ratio Debt is at least equal incurred, such Ratio Debt shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Loans (as originally in effect prior to any scheduled amortization or greater than 2.00:1prepayments thereto) on the date such Ratio Debt is incurred; provided that this clause (iv) shall not apply to Ratio Debt constituting Customary Bridge Loans.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company any Loan Party under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000Loan Documents;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Company Borrower or any Restricted Subsidiary under to any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any that, if a Loan Party Incurs such Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor Loan Party, such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and expressly subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance Obligations of the Company's obligations such Loan Party under the Securities and Loan Documents pursuant to all Senior Indebtednessthe Intercompany Subordination Agreement; provided, further, that any disposition, pledge subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Person Restricted Subsidiary or any other subsequent transfer of such Indebtedness (other than a disposition, pledge except to the Borrower or transfer to a Restricted Subsidiary) shall will be deemed to be deemed, in each case, an incurrence Incurrence of such Indebtedness by the Company issuer or other obligor thereof not permitted by this clause (vii);
(viA) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that Borrower, and the Guarantors incurred under the ABL Loan Documents, and any Refinancing Debt Incurred in respect thereof (and any Refinancing Debt Incurred in respect of such Refinancing Debt) so long as (i) such Indebtedness is made pursuant subject to an intercompany note (and in compliance with) the terms of the Intercreditor Agreement and (ii) the aggregate principal amount of Indebtedness thereunder does not exceed the greater of (x) $175,000,000 and (y) the Borrowing Base as of the time such Indebtedness is incurred, (B) any other Indebtedness outstanding on the Closing Date and set forth on Schedule 6.01, and (C) any Refinancing Debt Incurred (and any Refinancing Debt Incurred in respect of such Refinancing Debt) in respect of any Indebtedness described in the form attached as Annex A foregoing clause (iii)(B) or paragraph (a) above (subject to this Indenture; providedthe limitation set forth in the proviso to such paragraph (a) with respect to Indebtedness Incurred by Restricted Subsidiaries that are not Loan Parties);
(iv) Purchase Money Obligations and Capitalized Lease Obligations, furtherand any Refinancing Debt with respect thereto, that in an aggregate principal amount at any disposition, pledge time outstanding not exceeding an amount equal to the greater of $260.0 million and 40.0% of Consolidated EBITDA for the Relevant Reference Period;
(v) Indebtedness consisting of accommodation guarantees for the benefit of trade creditors of the Borrower or transfer any of its Restricted Subsidiaries;
(A) Guarantees by the Borrower or any such Restricted Subsidiary of Indebtedness to a Person or any other obligation or liability of the Borrower or any Restricted Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Section 6.01), or (B) shall be deemed without limiting Section 6.06, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (viSection 6.01);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations Indebtedness of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company Borrower or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against fluctuations in interest rates insufficient funds, provided that such Indebtedness is extinguished within five (5) Business Days of its Incurrence, or (B) consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business business, assets or assets of a Restricted SubsidiaryPerson;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiiviii) Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations Restricted Subsidiary in respect of (A) letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), or (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, or (C) Hedging Agreements entered into for bona fide hedging purposes, or (D) the financing of insurance premiums in the ordinary course of business, or (E) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;
(ix) Indebtedness Incurred by a Securitization Subsidiary (subject to the final sentence of the definition of “Attributable Securitization Financing Indebtedness”) in a Qualified Securitization Financing in an amount not to exceed the greater of $130.0 million and 20.0% of Consolidated EBITDA for the Relevant Reference Period; provided that (A) such Indebtedness is not recourse to or guaranteed by (and does not otherwise obligate, contingently or otherwise) the obligations Borrower or any Restricted Subsidiary that is not a Securitization Subsidiary or any of its or their respective assets or properties (except for Standard Securitization Undertakings), (B) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Securitization Subsidiary (other than with respect to Standard Securitization Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this covenant for so long as such letters Indebtedness shall be so recourse; and (C) in the event that at any time thereafter such Indebtedness shall comply with the provisions of credit the preceding subclause (A), the Borrower may classify such Indebtedness in whole or in part as Incurred under this Section 6.01(b)(ix);
(x) Indebtedness of (x) the Borrower or any Restricted Subsidiary Incurred or issued to finance an Acquisition or similar permitted Investment (such Indebtedness under this clause (x), “Incurred Acquisition Debt”) or (y) Persons that are supported acquired by letters the Borrower or any Restricted Subsidiary or merged into, amalgamated or consolidated with the Borrower or a Restricted Subsidiary in accordance with the terms of credit this Agreement (including designating an Unrestricted Subsidiary as a Restricted Subsidiary) so long as such Indebtedness under this clause (y) was not incurred in contemplation of such acquisition, merger, amalgamation, consolidation or designation, as the case may be (such Indebtedness under this clause (y), “Acquired Debt”); provided that Indebtedness Incurred or assumed pursuant to clause (x) and clause (y), collectively, is in an aggregate amount not to exceed (in the case of clause (i), together with any Refinancing Debt in respect thereof) (i) the greater of $162.5 million and 25.0% of Consolidated EBITDA for the Relevant Reference Period at any one time outstanding, plus (ii) unlimited additional Indebtedness if, as of the last day of the Relevant Reference Period after giving pro forma effect to such acquisition, merger, amalgamation or consolidation and the incurrence of such Indebtedness (but not the cash proceeds thereof and assuming the drawing of the full amounts established thereunder) and the use of proceeds thereof, the Borrower could Incur at least $1.00 of Ratio Debt or the Consolidated Total Leverage Ratio of the Borrower would be no greater than the Consolidated Total Leverage Ratio of the Borrower immediately prior to giving effect thereto and any Refinancing Debt with respect to such Indebtedness; provided, further that:
(A) no Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such Incurrence;
(B) the amount of Indebtedness that may be Incurred pursuant to the foregoing (including any Refinancing Debt in respect thereof) by Restricted Subsidiaries that are not Loan Parties, together with the Ratio Debt Incurred pursuant to Section 6.01(a) by Restricted Subsidiaries that are not Loan Parties, shall not exceed the greater of $325.0 million and 50.0% of Consolidated EBITDA for the Relevant Reference Period at any one time outstanding;
(C) any such Incurred Acquisition Debt shall not mature earlier than the Latest Maturity Date with respect to the Loans at the time of Incurrence of such Indebtedness; provided that this clause (C) shall not apply to Incurred Acquisition Debt constituting Customary Bridge Loans;
(D) if any Incurred Acquisition Debt is Incurred or Guaranteed by any Loan Party, such Incurred Acquisition Debt shall not be Incurred or Guaranteed by any Person other than a Loan Party;
(E) if any Incurred Acquisition Debt is secured by all or any portion of the Collateral, such Incurred Acquisition Debt shall not be secured by any asset other than the Collateral;
(F) if such Indebtedness is secured by the Collateral on a junior basis to the Liens securing the Obligations, then such Indebtedness shall be subject to the Intercreditor Agreement and an Additional Junior Lien Intercreditor Agreement (and the Administrative Agent agrees to negotiate such Additional Junior Lien Intercreditor Agreement in good faith);
(G) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Obligations, then such Indebtedness shall be subject to the Intercreditor Agreement and the Pari Passu Intercreditor Agreement;
(H) as of the date any Incurred Acquisition Debt is incurred, such Incurred Acquisition Debt shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of the Loans (as originally in effect prior to any scheduled amortization or prepayments thereto) on the date such Incurred Acquisition Debt is incurred; provided that this clause (H) shall not apply to Incurred Acquisition Debt constituting Customary Bridge Loans;
(I) the documentation with respect to any Incurred Acquisition Debt shall contain terms and conditions (other than with respect to pricing, fees, premiums and optional prepayment or redemption terms) not materially more restrictive (taken as a whole) in respect of Holdings, the Borrower and the Restricted Subsidiaries than those set forth in this Agreement or otherwise shall be on current market terms; and
(J) any such Incurred Acquisition Debt in the form of term loans that are incurred on or prior to the date that is 24 months after the Closing Date and that are secured on a pari passu basis with the Liens securing the Obligations shall be subject to the MFN Provision;
(xi) Indebtedness of Restricted Subsidiaries that are not Loan Parties in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $325.0 million and 50.0% of Consolidated EBITDA for the Relevant Reference Period and any Refinancing Debt with respect thereto;
(xii) Contribution Indebtedness and any Refinancing Debt with respect thereto;
(xiii) Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $325.0 million and 50.0% of Consolidated EBITDA for the Relevant Reference Period; and
(A) Indebtedness of the Borrower in the form of term loans or notes, which Indebtedness (I) shall either be secured on a pari passu or junior basis to the Liens securing the Obligations or be unsecured and (II) shall be contractually pari passu or junior in right of payment to the Obligations, that is incurred or issued or made in lieu of Incremental Loan Commitments (the “Incremental Equivalent Debt”); provided that:
(1) the aggregate principal amount of all Incremental Equivalent Debt issued pursuant to this Section 6.01(b)(xiv) shall not, together with any Incremental Loan Commitments, exceed the Available Incremental Amount;
(2) subject to Section 1.09(f), no Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such Incurrence;
(3) as of the date of determination, any such Incremental Equivalent Debt shall not mature earlier than the Latest Maturity Date with respect to the Loans at the time of Incurrence of such Indebtedness (or, in the case of Credit Agreement Refinancing Debt, the final maturity of the Class of Loans refinanced thereby); provided that this clause (3) shall not apply to Incremental Equivalent Debt that is a term loan facility constituting Customary Bridge Loans;
(4) the documentation with respect to any such Incremental Equivalent Debt contains no mandatory prepayment, repurchase or redemption provisions prior to the Latest Maturity Date with respect to the Loans then in effect except with respect to excess cash flow, change of control, asset sale and event of loss or other credit support issued mandatory offers to purchase or provided under mandatory prepayments and customary acceleration rights after an event of default that are customary for financings of this type;
(5) such Incremental Equivalent Debt may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary prepayments or prepayments of principal of the Credit AgreementLoans hereunder and on a pro rata basis or less than a pro rata basis (but not on a greater than pro rata basis) in any mandatory repayments or prepayments of principal of the Loans hereunder (or, if junior in right of payment or security, shall be on a junior basis with respect thereto);
(6) such Incremental Equivalent Debt shall not be subject to any guarantee by any Person other than a Loan Party;
(7) such Incremental Equivalent Debt shall not be secured by any Lien on any asset of the Borrower, Holdings or any Restricted Subsidiary other than any asset constituting Collateral;
(8) the security agreements relating to such Incremental Equivalent Debt shall be substantially the same as the Collateral Documents (with such differences that are reasonably satisfactory to the Administrative Agent);
(9) if such Incremental Equivalent Debt is secured on a junior basis to the Liens securing the Obligations, then such Incremental Equivalent Debt shall be subject to the Intercreditor Agreement and an Additional Junior Lien Intercreditor Agreement (and the Administrative Agent agrees to negotiate such Additional Junior Lien Intercreditor Agreement in good faith);
(10) if such Incremental Equivalent Debt is secured
Appears in 2 contracts
Sources: Credit Agreement (Mattress Firm Group Inc.), Credit Agreement (Mattress Firm Group Inc.)
Limitation on Indebtedness. (a) The Company will Issuer shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of Issuer and any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
Subsidiaries may Incur Indebtedness if on the date of such Incurrence and after giving pro forma effect thereto (iii) Indebtedness including pro forma application of the Company pursuant proceeds thereof), the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries is greater than 2.00 to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness1.00; provided, further, that Non-Guarantors may not Incur Indebtedness if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of $35 million of Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph at such time.
(b) The first paragraph of this covenant shall not prohibit the Incurrence of the following Indebtedness:
(1) Indebtedness Incurred pursuant to any dispositionCredit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), pledge or transfer of and any such Refinancing Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence in respect thereof and Guarantees in respect of such Indebtedness by in a maximum aggregate principal amount at any time outstanding not exceeding (i) $1,100.0 million, plus (ii) in the Company case of any refinancing of any Indebtedness permitted under this Section 3.2(b)(1) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other obligor not permitted by this clause (v)costs and expenses Incurred in connection with such refinancing;
(vi2) (i) Guarantees by the Issuer or any Restricted Subsidiary of Indebtedness of the Issuer or any Guarantor so long as the Incurrence of such Indebtedness is permitted under the terms of this Indenture;
(3) Indebtedness of the Issuer owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company Issuer or any Restricted Subsidiary; provided, however, that that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Currency Hedging Agreements do not increase Indebtedness being beneficially held by a Person other than the Indebtedness Issuer or a Restricted Subsidiary of the Issuer; and
(ii) any sale or other obligations transfer of any such Indebtedness to a Person other than the Issuer or a Restricted Subsidiary of the Company Issuer, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (i) the Notes (other than any Additional Notes), including any Guarantee thereof, (ii) any Exchange Notes issued in exchange for such Notes (including any Guarantee thereof), (iii) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1), (3) and (4)(i)) outstanding on the Issue Date, (iv) Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause or clauses (5), (7), (10) or (14) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a), and (v) Management Advances;
(5) Indebtedness of (x) the Issuer or a Restricted Subsidiary Incurred or issued to finance an acquisition or (y) Persons that are acquired by the Issuer or any Restricted Subsidiary outstanding or merged into or consolidated with the Issuer or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that after giving effect to such acquisition, merger or consolidation, either
(i) the Issuer would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 3.2(a),
(ii) the Fixed Charge Coverage Ratio of the Issuer and the Restricted Subsidiary would not be lower than immediately prior to such acquisition, merger or consolidation; or
(iii) such Indebtedness constitutes Acquired Indebtedness (other than as Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a result of fluctuations in foreign currency exchange rates Restricted Subsidiary or was otherwise acquired by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation
(6) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (7) and then outstanding, does not exceed the greater of (i) $40.0 million and (ii) 1.75% of Total Assets at the time of Incurrence and any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors Refinancing Indebtedness in respect thereof;
(ix8) Indebtedness in respect of (i) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other - 118 - Indebtedness incurred tax or assumed in connection with the acquisition other guarantees or development of real other similar bonds, instruments or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; obligations and completion guarantees and warranties provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company Issuer or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business, (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of Incurrence; (iii) Customer deposits and advance payments received in the ordinary course of business from customers for goods or services purchased in the ordinary course of business; (iv) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business, (v) the financing of insurance premiums in the ordinary course of business and (vi) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Issuer and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a Disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Issuer and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause (10) and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Issuer from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or otherwise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Issuer, in each case, subsequent to the Issue Date; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Issuer and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause (10) to the extent the Issuer or any of its Restricted Subsidiaries makes a Restricted Payment;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii11) Indebtedness of the Sytner Group plc and any of its Subsidiaries Non-Guarantors in an aggregate principal amount not to exceed $90,000,000 50 million at any time outstanding;
(12) Indebtedness consisting of promissory notes issued by the Issuer or any of its Subsidiaries to any current or former employee, director or consultant of the Issuer, any of its Subsidiaries or any of its Parents (or permitted transferees, assigns, estates, or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of the Issuer or any of its Parents that is permitted by Section 3.3;
(13) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed $75 million; and
(15) Guarantees of the Borrower or any Restricted Subsidiary in connection with the provision of credit card payment processing services.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:
(1) in the event that Indebtedness meets the criteria of more than one time; of the types of Indebtedness described in the first and second paragraphs of this covenant, the Issuer, in its sole discretion, shall classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness under one of the clauses of Section 3.2(a) or (xiiib);
(2) additionally, all or any portion of any item of Indebtedness may later be classified as having been Incurred pursuant to any type of Indebtedness described in one of the clauses of Section 3.2(a) or (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification;
(3) all Indebtedness outstanding on the Issue Date under the Credit Agreement shall be deemed initially Incurred on the Issue Date under Section 3.2(b)(1);
(4) Guarantees of, or obligations in respect of letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the ordinary course determination of business a particular amount of Indebtedness shall not be included;
(5) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to clause (a), (b)(1), (b)(7), (b)(10), (b)(11) or (b)(14) of this Section 3.2 and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(6) the principal amount of any Disqualified Stock of the Issuer or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(7) Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness; and
(8) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of GAAP. Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2. The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (ii) the principal amount, or liquidation preference thereof, in the case of any other Indebtedness. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Issuer as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 3.2, the Issuer shall be in default of this Section 3.2). Notwithstanding any other provision of this Section 3.2, the maximum amount of Indebtedness that the Issuer or a Restricted Subsidiary may Incur pursuant to this Section 3.2 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred 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 Refinancing Indebtedness is denominated that is in effect on the date of such refinancing. The Issuer shall not, and shall not permit any Guarantor to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) that is subordinated or junior in right of payment to any Indebtedness of the Issuer or such Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the Notes or such Guarantor’s Guarantee to the extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Issuer or such Guarantor, as the case may be; provided that for purposes of this Indenture, (1) unsecured Indebtedness shall not be treated as subordinated or junior to Secured Indebtedness merely because it is unsecured and (2) senior Indebtedness shall not be treated as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the obligations under such letters of credit are supported same collateral or is secured by letters of credit or other credit support issued or provided under the Credit Agreement;different collateral.
Appears in 2 contracts
Sources: Indenture (Epicor International Holdings, Inc.), Indenture (Epicor Software Corp)
Limitation on Indebtedness. (a) The Company Parent Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Parent Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00; provided, further, that the amount of Indebtedness that may be Incurred pursuant to this Subsection 8.1(a) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of (x) $127,500,000 and (y) 7.50% of Consolidated Total Assets at any one time outstanding.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Parent Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness Incurred by the Borrowers and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (d) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof) and (e) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and any Refinancing Indebtedness in respect thereof, in a maximum principal amount for all such Indebtedness at any time outstanding not exceeding in the Company under aggregate the Company's Credit Agreement amount equal to the sum of (A) $325,000,000, plus (B) the greater of (x) $425,000,000 and (y) an amount equal to (1) the Domestic Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(ix), plus (C) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness”, in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including any refinancing accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (as defined belowII) Indebtedness Incurred by the Borrowers and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations, (d) constituting Rollover Indebtedness, and (e) in respect of such Indebtedness) Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9, in an aggregate principal amount at for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to clause (i) of the definition of “Maximum Incremental Facilities Amount”, treating (x) any one time then unused portion of Incremental Revolving Commitments made available in reliance on such clause as outstanding not Indebtedness and (y) Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to exceed $920,000,000 in any case under the Credit Agreement or this Subsection 8.1(b)(i)(II) in respect of letters Indebtedness Incurred in reliance on clause (i) of credit under the Credit Agreement, definition of “Maximum Incremental Facilities Amount” (and guarantees by Guarantors Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect thereof; providedof such Refinancing Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), however, that together with Refinancing Indebtedness in respect of the foregoing amount shall be reduced by Indebtedness described in subclauses (a), (b), (c), (d) the U.S. dollar equivalent of any loan notes referred to in clause and (xie) of this Section 1008(b) not collateralized by cash clause (II), plus, without duplication of incremental amounts included in excess the definition of $40,000,000 and (b) “Refinancing Indebtedness”, the aggregate amount of Indebtedness incurred pursuant to clause all fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Parent Borrower, or (B) of the Company Parent Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Parent Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) Indebtedness of represented by (A) [reserved], (B) any Indebtedness (other than the Company Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness described in this Subsection 8.1(b)(iii) or the Exchange SecuritiesSubsection 8.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $68,000,000 and not otherwise referred to in this definition 4.00% of "Permitted Indebtedness"Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Parent Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Parent Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Parent Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Parent Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of the Parent Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Parent Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Parent Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of the Parent Borrower or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business business, or (aB) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Parent Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Parent Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an amount not to exceed $80,000,000 in the aggregate at any one time outstanding, or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Parent Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Parent Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower Representative as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse, and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower Representative may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) the Parent Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or assets Person, or any merger, consolidation or amalgamation of a any Person with or into the Parent Borrower or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into the Parent Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger, consolidation or amalgamation); provided that on the date of such acquisition, merger, consolidation or amalgamation, after giving effect thereto, either (1) the Parent Borrower would have a Consolidated Total Leverage Ratio equal to or less than 4.00:1.00 or (2) the Consolidated Total Leverage Ratio of the Parent Borrower would equal or be less than the Consolidated Total Leverage Ratio of the Parent Borrower immediately prior to giving effect thereto; provided, further, that if, at the Borrower Representative’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection Contribution Indebtedness and any Refinancing Indebtedness with the tender offer for all of such Capital Stockrespect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Subsection 8.1(a), and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of the Sytner Group plc and Parent Borrower or any of its Subsidiaries Restricted Subsidiary in an aggregate principal amount not to exceed $90,000,000 at any one timetime outstanding not exceeding an amount equal to the greater of $195,500,000 and 11.50% of Consolidated Total Assets;
(xiv) Indebtedness of the Parent Borrower or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger, consolidation or amalgamation of any Person with or into the Parent Borrower or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $68,000,000 and 4.00% of Consolidated Total Assets; and
(xv) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding the greater of (x) $32,000,000 and (y) an amount equal to (A) the Foreign Borrowing Base less (B) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) plus (C) in the event of any refinancing of any Indebtedness Incurred under this clause (xv), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Subsection 8.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Subsection 8.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (xiiiii) obligations in the event that Indebtedness Incurred pursuant to Subsection 8.1(b) meets the criteria of more than one of the types of Indebtedness described in Subsection 8.1(b), the Borrower Representative, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Subsection 8.1(b) (including in part under one such clause and in part under another such clause); provided that (if the Borrower Representative shall so determine) any Indebtedness Incurred pursuant to (x) Subsection 8.1(b)(xiii) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Subsection 8.1(a) from and after the first date on which the Parent Borrower or any Restricted Subsidiary could have Incurred such Indebtedness under Subsection 8.1(a) without reliance on such clause and (y) the Cash Capped Incremental Facility shall cease to be deemed Incurred or outstanding for purposes of such definition but shall be deemed Incurred for the purposes of the Ratio Incremental Facility from and after the first date on which the Parent Borrower could have Incurred such Indebtedness under the Ratio Incremental Facility without reliance on such provision; (iii) in the event that Indebtedness could be Incurred in part under paragraph (a) above, the Borrower Representative, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under paragraph (a) above and the remainder of such Indebtedness as having been Incurred under paragraph (b) above; (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of letters Indebtedness outstanding under any subclause of credit Subsection 8.1(b), including for purposes of any determination of the “Maximum Incremental Facilities Amount”, shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; and (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred in reliance on a basket measured by reference to a percentage of Consolidated Total Assets at the time of Incurrence, and such refinancing would cause the percentage of Consolidated Total Assets restriction to be exceeded if calculated based on the Consolidated Total Assets on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or other credit support provided by the Company and its Restricted Subsidiaries payable in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;con
Appears in 2 contracts
Sources: Credit Agreement (SiteOne Landscape Supply, Inc.), Credit Agreement (SiteOne Landscape Supply, Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit Neither the Borrower nor any of its the Restricted Subsidiaries toshall, directly or indirectly, create, incur, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurliable, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, to “incur”), for the Company's Consolidated payment of any Indebtedness, except as follows:
(a) Indebtedness incurred by the Borrower or any Restricted Subsidiary (including any Indebtedness assumed in connection with an acquisition or Investment) so long as, on a pro forma basis, the Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.2.00:1.00, and any Refinancing Indebtedness in respect thereof;
(b) Notwithstanding Indebtedness incurred by the foregoing, the Company and, to the extent specifically set forth below, Borrower and the Restricted Subsidiaries may incur each pursuant to Credit Facilities and all of the following (collectively, the "Permitted Indebtedness"):
(i) any Refinancing Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred that, immediately after giving effect to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a dispositionincurrence, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such all Indebtedness then outstanding, incurred under this clause (b) under any Currency Hedging Agreements, relating to and then outstanding does not exceed the greater of (ix) $12,708,350,000 and (y) 85.0% of Consolidated Net Tangible Assets;
(c) Indebtedness of the Company or Borrower and the Guarantors related to the Restatement Term Loans extended under this Agreement and any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course Guarantees of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection AgreementsRestatement Term Loans, and guarantees by Guarantors any Refinancing Indebtedness in respect thereof;
(ixd) the incurrence by the Borrower or any Restricted Subsidiary of the Indebtedness existing as of the Agreement Date that is described on Schedule 9.2 and any Refinancing Indebtedness in respect thereof;
(e) Indebtedness of the Company Borrower or any Restricted Subsidiary represented by under equipment purchase or lines of credit, or for Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with Obligations; provided that, immediately after giving effect to any such incurrence, the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted incurred under this clause (ixe) did and then outstanding does not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, greater of the acquired or constructed asset or improvement so financed(x) $1,121,325,000 and (y) 7.50% of Consolidated Net Tangible Assets;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiif) Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations Restricted Subsidiary incurred in respect of (c) performance bonds, completion guarantees, surety bonds, bankers’ acceptances, letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported similar bonds, instruments or obligations, including Indebtedness evidenced by letters of credit issued to support the insurance or self-insurance obligations of the Borrower or any of the Restricted Subsidiaries (including to secure workers’ compensation and other similar insurance coverages), but excluding letters of credit support issued in respect of or provided to secure money borrowed, (d) obligations under Hedge Agreements entered into for bona fide hedging purposes of the Credit AgreementBorrower and not for speculative purposes, (e) financing of insurance premiums or (f) cash management obligations and netting, overdraft protection and other similar facilities or arrangements, in each case arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains such facility or arrangement;
(g) Indebtedness consisting of accommodation guarantees for the benefit of trade creditors of the Borrower or any Restricted Subsidiary;
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (United Rentals North America Inc), Amendment and Restatement Agreement (United Rentals North America Inc)
Limitation on Indebtedness.
(a) The Company Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness); provided, unless such Indebtedness is incurred by the Company or however, that an Issuer and any Guarantor or constitutes may Incur Indebtedness (including Acquired Indebtedness Indebtedness) if on the date of a Restricted Subsidiary and, in each casesuch Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is Parent and its Restricted Subsidiaries would have been at least equal 2.0 to or greater than 2.00:1.1.0 and the Consolidated Net Leverage Ratio for the Parent and its Restricted Subsidiaries would have been at least 3.0 to 1.0.
(b) Notwithstanding Section 4.01(a) will not prohibit the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Incurrence of the following Indebtedness (collectively, the "“Permitted Indebtedness"):Debt”):
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including in respect of letters of credit or bankers’ acceptances issued or created thereunder), and any refinancing (as defined below) Refinancing Indebtedness in respect thereof and Guarantees in respect of such Indebtedness) Indebtedness in an a maximum aggregate principal amount at any one time outstanding not to exceed $920,000,000 100.0 million; plus in any the case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) refinancing of any Indebtedness permitted under this Section 1008(b4.01(b)(i) not collateralized by cash in excess of $40,000,000 and (b) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing; provided that the aggregate principal amount of Indebtedness incurred Incurred by Restricted Subsidiaries that are not Guarantors or an Issuer pursuant to clause (xii) of this Section 1008(b4.01(b)(i) in excess of shall not exceed $20,000,00010.0 million at any time;
(ii) Indebtedness of A. Guarantees by the Company Parent or any Restricted Subsidiary under any Inventory Facility;
(iii) of Indebtedness of the Company pursuant to the Securities an Issuer or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or guarantees by any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time not a Guarantor, so long as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence Incurrence of such Indebtedness by is permitted under the Company or other obligor not permitted by terms of this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided Indenture, provided, that any if such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer subordinated to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company Notes or any Guarantor entered into in Note Guarantee, then such guarantees shall also be subordinated to the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect Note or such Note Guarantee on the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiarysame basis; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;or
Appears in 2 contracts
Sources: Indenture (Ferroglobe PLC), Indenture (Ferroglobe PLC)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.any Loan Document;
(b) Notwithstanding Indebtedness of (i) the foregoingBorrower to any Subsidiary, the Company and, (ii) any Subsidiary Guarantor to the extent specifically set forth belowBorrower or any other Subsidiary, (iii) any Subsidiary that is not a Subsidiary Guarantor to the Restricted Subsidiaries may incur each Borrower or any Subsidiary Guarantor in an amount not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets outstanding at any one time, and all (iv) any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor;
(c) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 6.3(g); provided that the aggregate principal amount of such Indebtedness, plus the aggregate principal amount of Indebtedness permitted by Section 6.2(h), shall not at any time exceed $40,000,000 outstanding;
(d) Indebtedness outstanding on the Closing Date and listed on Schedule 6.2(d) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof or any shortening of the following maturity of any principal amount thereof, except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);
(collectivelye) Guarantee Obligations made in the ordinary course of business by (i) the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor, (ii) the "Permitted Indebtedness"):Borrower or any of its Subsidiaries of obligations of any Subsidiary that is not a Subsidiary Guarantor in an amount not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets outstanding at any time and (iii) any Subsidiary that is not a Subsidiary Guarantor of the obligations of any other Subsidiary that is not a Subsidiary Guarantor;
(i) Indebtedness of the Company under Borrower in respect of the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) Senior Notes in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in 700,000,000, (ii), Guarantee Obligations of any case under the Credit Agreement or Subsidiary Guarantor in respect of letters of credit under the Credit Agreementsuch Indebtedness, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant Borrower that refinances the Senior Notes and Guarantee Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the maturity date of such refinancing Indebtedness shall be no earlier than six months after the Latest Maturity Date, (B) the terms of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable to the Securities or Borrower and the Exchange Securities Subsidiary Guarantors than the terms of the Senior Notes and (C) the principal amount of such refinancing Indebtedness does not exceed the principal amount of any Guarantor pursuant Senior Notes refinanced thereby except by an amount equal to a guarantee of the Securities reasonable premium or the Exchange Securities;
other similar amount paid, and fees and expenses reasonably incurred, in connection therewith and (iv) Indebtedness of the Company Borrower that refinances Indebtedness incurred in accordance with clause (iii) above and this clause (iv) and Guarantee Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the maturity date of such refinancing Indebtedness shall be no earlier than six months after the maturity date of such Indebtedness incurred in accordance with clause (iii) above, (B) the terms of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable to the Borrower and the Subsidiary Guarantors than the terms of such Indebtedness incurred in accordance with clause (iii) above and (C) the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness incurred in accordance with clause (iii) above, except by an amount equal to a reasonable premium or any Restricted Subsidiary outstanding on the initial Issue Date other similar amount paid, and not otherwise referred to fees and expenses reasonably incurred, in this definition of "Permitted Indebtedness"connection therewith;
(vg) Indebtedness of the Company owing Borrower or its Subsidiaries incurred to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person engaged in, or assets used or useful in, a Restricted Subsidiarybusiness permitted pursuant to Section 6.15; provided that any (i) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date at the time such Indebtedness is incurred, (ii) both immediately prior and after giving effect to the incurrence thereof, no Default or Event of Default shall exist or would result therefrom, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.1 after giving effect to such incurrence of Indebtedness (determined on the assumption that such incurrence of Indebtedness had occurred on the first day of the Company owing to a Restricted Subsidiary that relevant period measured by such covenants), (iv) such Indebtedness is not a Guarantor is made pursuant to an intercompany note in also incurred by or guaranteed by any Subsidiaries of the form attached as Annex A to this Indenture Borrower other than the Subsidiary Guarantors and is unsecured not incurred by or guaranteed by any other Person and (v) if such Indebtedness is secured, (A) such Indebtedness is secured by the Collateral (or a portion thereof) on a second lien, subordinated in right basis to the Obligations and is not secured by any property or assets of payment from and after the Borrower or any of its Subsidiaries other than the Collateral (or a portion thereof), (B) the security agreements relating to such time Indebtedness are substantially the same as the Securities shall become due and payable Security Documents (whether at Stated Maturity, acceleration or otherwise) with such differences as are reasonably satisfactory to the payment Administrative Agent; provided that such differences are not more favorable to the investors in such secured Indebtedness) and performance (C) an agent or representative acting on behalf of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence holders of such Indebtedness by shall have executed and delivered the Company Second Lien Intercreditor Agreement or other obligor not permitted by this clause (v)an accession thereto in form and substance satisfactory to the Administrative Agent;
(vih) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiarysecured by Liens permitted by Section 6.3(l); provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness, plus the aggregate principal amount of Indebtedness then permitted by Section 6.2(c), shall not at any time exceed $40,000,000 outstanding, (b) under any Currency Hedging Agreements, relating to ;
(i) Indebtedness of the Company Borrower or any Restricted Subsidiary and/or (ii) obligations to purchase its Subsidiaries arising from the honoring by a bank or sell assets other financing institution of a check, draft or properties, in each case, incurred similar instrument inadvertently drawn against insufficient funds in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofbusiness;
(ixj) Indebtedness of the Company Borrower or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development its Subsidiaries arising from agreements providing for indemnification, adjustment of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business business, assets or a Subsidiary, other than the guaranties 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 of its Subsidiaries (contingent obligations referred to in a Restricted Subsidiaryfootnote to financing statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (i)) and (ii) 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 Borrower and its Subsidiaries in connection with such disposition;
(xik) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) subordinated Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount at any time outstanding not to exceed $90,000,000 5,000,000 issued to directors, officers or employees of the Borrower or any of its Subsidiaries in connection with the redemption or purchase of Capital Stock that is not secured by any assets of the Borrower or any of its Subsidiaries, does not require cash payments prior to the stated maturity of the Senior Notes and contains subordination terms reasonably acceptable to the Administrative Agent;
(l) Indebtedness of the Borrower consisting of outstanding Permitted Foreign Currency Letters of Credit, the Dollar Equivalent of which shall not exceed $20,000,000 in aggregate principal amount as of the most recent Calculation Date;
(m) Credit Agreement Refinancing Indebtedness; and
(n) other Indebtedness, not included in clauses (a) through (m) above, not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets in an aggregate principal amount (or accreted value, as applicable) at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (B&G Foods, Inc.), Credit Agreement (B&G Foods, Inc.)
Limitation on Indebtedness. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Company and any of its Restricted Subsidiaries may Incur Non-Funding Indebtedness, if on the date of such Incurrence and after giving pro forma effect thereto (aincluding pro forma application of the proceeds thereof), (i) the U.S. dollar equivalent Consolidated Non-Funding Debt to Equity Ratio of any loan notes referred the Company and its Restricted Subsidiaries is not greater than 1.75 to 1.00 and (ii) the Company would have been in clause (xi) compliance with the covenant set forth in Section 3.3 as of this Section 1008(b) not collateralized by cash in excess the last day of $40,000,000 and the most recent fiscal quarter for which financial statements of the Company are available.
(b) Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness (collectively, “Permitted Debt”):
(i) Indebtedness Incurred pursuant to any Credit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), and any Refinancing Indebtedness in respect thereof and Guarantees in respect of such Indebtedness in a maximum aggregate principal amount at any time outstanding not exceeding (i) the greater of $225.0 million or 4.0% of Total Assets, plus (ii) in the case of any refinancing of any Indebtedness permitted under this clause or any portion thereof, the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) fees, underwriting discounts, premiums and other costs and expenses Incurred in excess of $20,000,000connection with such refinancing;
(ii) Guarantees by the Company or any Restricted Subsidiary of Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facilityso long as the Incurrence of such Indebtedness is not prohibited by the terms of this Indenture;
(iii) Indebtedness of the Company pursuant owing to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or held by any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that that:
(1) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Currency Hedging Agreements do not increase Indebtedness being beneficially held by a Person other than the Indebtedness Company or a Restricted Subsidiary of the Company; and
(2) any sale or other obligations transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary of the Company, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(iv) Indebtedness represented by (i) the Notes (other than any Additional Notes), including any Guarantee thereof, (ii) any Indebtedness (other than Indebtedness incurred pursuant to Section 3.2(b)(i) and (iii)) outstanding on the Issue Date, (iii) Refinancing Indebtedness (including, in the case of the Notes (other than any Additional Notes)) and any Guarantee thereof Incurred in respect of any Indebtedness described in this clause or clauses (v), (vi), (vii), (ix) or (xiv) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a), and (iv) Management Advances;
(v) Indebtedness of (x) the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates Incurred or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements issued to finance an acquisition or (cy) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of Persons that are acquired by the Company or any Restricted Subsidiary outstanding other than as or merged into or consolidated with the Company or a result Restricted Subsidiary in accordance with the terms of fluctuations this Indenture; provided that after giving effect to such acquisition, merger or consolidation, either
(1) the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Consolidated Non-Funding Debt to Equity Ratio test set forth in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofSection 3.2(a);
(ix2) Indebtedness the Consolidated Non-Funding Debt to Equity Ratio of the Company and its Restricted Subsidiaries would not be greater than immediately prior to such acquisition, merger or any consolidation; or
(3) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(vi) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(vii) Indebtedness represented by Capital Capitalized Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding and any Refinancing Indebtedness in respect thereof, does not exceed the greater of (ixi) not to exceed $35,000,000 outstanding at any time; provided that the principal amount 55.0 million and (ii) 1.0% of any Indebtedness permitted under this clause (ix) did not in each case Total Assets at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedIncurrence;
(xviii) Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other tax or other guarantees or other similar bonds, instruments or obligations arising from agreements and completion guarantees and warranties provided by the Company or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice, (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five Business Days of Incurrence; (iii) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; (iv) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice, and (v) any customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, cash pooling or netting or setting off arrangements in the ordinary course of business or consistent with past practice;
(ix) Indebtedness arising from agreements providing for guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price, in each case, or similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Restricted Subsidiary;
(x) Indebtedness consisting of promissory notes issued by the Company or any of its Subsidiaries to any current or former employee, director or consultant of the Company, any of its Subsidiaries or any of its Parents (or permitted transferees, assigns, estates, or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of the Company or any of its Parents;
(xi) loan notes, if any, issued to a holder Indebtedness of the shares Company or any of Capital Stock its Restricted Subsidiaries consisting of Sytner Group plc (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in connection supply arrangements, in each case Incurred in the ordinary course of business or consistent with the tender offer for all of such Capital Stockpast practice;
(xii) Permitted Funding Indebtedness;
(xiii) Permitted Securitization Indebtedness and Indebtedness under Credit Enhancement Agreements or arising out of or to fund purchases of all remaining outstanding asset-backed securities of any Securitization Entity for the purpose of relieving the Company or a Subsidiary of the Sytner Group plc and any Company of its Subsidiaries the administrative expense of servicing such Securitization Entity; and
(xiv) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (a) $165.0 million and (b) 3.0% of Total Assets.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to exceed $90,000,000 at and in compliance with, this Section 3.2:
(i) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one time; of the types of Indebtedness described in Section 3.2(a) and (xiiib), the Company, in its sole discretion, will classify, and may from time to time reclassify, such Indebtedness and only be required to include the amount and type of such Indebtedness in one of the clauses of Section 3.2(a) or (b);
(ii) additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in Section 3.2(a) and (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision;
(iii) Guarantees of, or obligations in respect of letters of credit credit, bankers’ acceptances or other credit support provided by similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included;
(iv) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to clauses (i) or (vii) of Section 3.2(b) or Section 3.2(a) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(v) the principal amount of any Disqualified Stock of the Company or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(vi) Indebtedness permitted by this Section 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and its Restricted Subsidiaries in part by one or more other provisions of this Section 3.2 permitting such Indebtedness; and
(vii) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of GAAP.
(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the ordinary course form of business provided additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2. The amount of any Indebtedness outstanding as of any date shall be (a) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (b) the principal amount of the Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness.
(e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 3.2, the Company shall be in default of this Section 3.2).
(f) Notwithstanding any other provision of this Section 3.2, the maximum amount of Indebtedness that the obligations under Company or a Restricted Subsidiary may Incur pursuant to this Section 3.2 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred 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 letters Refinancing Indebtedness is denominated that is in effect on the date of credit are supported such refinancing.
(g) The Company shall not, and shall not permit any Guarantor to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness) that is subordinated or junior in right of payment to any Indebtedness of the Company or such Guarantor, as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the Notes or such Guarantor’s Guarantee to the extent and in the same manner as such Indebtedness is subordinated to other Indebtedness of the Company or such Guarantor, as the case may be.
(h) Unsecured Indebtedness shall not be treated as subordinated or junior to secured Indebtedness merely because such Indebtedness is unsecured. Senior Indebtedness shall not be treated as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral or is secured by letters of credit or other credit support issued or provided under the Credit Agreement;different collateral.
Appears in 2 contracts
Sources: Indenture (Ladder Capital Corp), Indenture (Ladder Capital Corp)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.any Loan Document;
(b) Notwithstanding the foregoingIndebtedness of (i) any Borrower or any Subsidiary Guarantor to any Group Member, the Company and, (ii) to the extent specifically set forth belowconstituting an Investment permitted under Section 7.8, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Subsidiary Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturityany Borrower or any Subsidiary Guarantor, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to provided that all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed subject to be an incurrence of such Indebtedness by the Company or Section 10.19, and (iii) any Subsidiary that is not a Subsidiary Guarantor to any other obligor Subsidiary that is not permitted by this clause (v)a Subsidiary Guarantor;
(vic) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided(including, furtherwithout limitation, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted SubsidiaryCapital Lease Obligations) shall be deemed to be an incurrence of such Indebtedness secured by the obligor not Liens permitted by this clause (vi);
(viiSection 7.3(g) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 25,000,000 at any one time; time outstanding;
(xiiid) obligations Indebtedness outstanding on the Closing Date and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof (other than by fees and expenses incurred in connection with such refinancing and interest with respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries thereto being capitalized));
(e) Guarantee Obligations made in the ordinary course of business by any Group Member of Indebtedness of any Loan Party;
(f) Indebtedness of any Group Member acquired pursuant to, or assumed in connection with, any Permitted Acquisition under Section 7.8(g); provided that such Indebtedness was not incurred (x) to provide all or a portion of the funds utilized to consummate the transaction or series of related transactions constituting such Permitted Acquisition or (y) otherwise in connection with, or in contemplation of, such Permitted Acquisition; and provided, further, that after giving effect to the incurrence of any such Indebtedness (and any substantially concurrent repayment of Obligations or consummation of a Permitted Acquisition) on a pro forma basis, as if such Indebtedness (and any substantially concurrent repayment of Obligations or consummation of a Permitted Acquisition) had been incurred on the first day of the twelve-month period ending on the last day of the US Borrower’s then most recently completed fiscal quarter for which financial statements are available, the US Borrower and its Subsidiaries would have been in compliance with all the financial covenants set forth in Section 7.1 and the US Borrower shall have delivered to the Administrative Agent a certificate of a Responsible Officer of the US Borrower to such effect setting forth in reasonable detail the computations necessary to determine such compliance, and (ii) any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof or shortening of the maturity of any principal amount thereof (other than by fees and expenses incurred and interest to be capitalized in connection with such refinancing) and on other material terms no less favorable to the applicable Group Member);
(i) unsecured subordinated Indebtedness of either Borrower, the proceeds of which are used either (x) to repay the Obligations hereunder or (y) to consummate Permitted Acquisitions and (ii) unsecured subordinated Indebtedness of either Borrower in an aggregate principal amount not to exceed $5,000,000, the proceeds of which may be used for general corporate purposes, provided that such amount may be increased to $100,000,000 if (x) prior to and after giving effect to the incurrence of such Indebtedness the Consolidated Leverage Ratio is less than 4.25 to 1.00 or, if less, the then applicable maximum Consolidated Leverage Ratio under Section 7.1(a) and (y) the proceeds thereof are used to consummate Permitted Acquisitions or for Capital Expenditures in respect of new landfills; provided, further, that, in the case of clauses (i) and (ii), (x) such Indebtedness is issued on customary market terms and conditions (including subordination terms) reasonably satisfactory to the Administrative Agent, (y) no Default or Event of Default exists and is continuing at the time of issuance thereof and (z) no part of the principal part of such Indebtedness shall have a maturity date earlier than the 91st day after the final maturity of the Term Loans hereunder;
(i) Indebtedness of the US Borrower in respect of the Senior Subordinated Notes in an aggregate principal amount not to exceed $160,000,000 and any subordinated Indebtedness of the US Borrower that refinances the Senior Subordinated Notes (including pursuant to a defeasance, discharge or redemption mechanism); provided that (w) such Indebtedness does not increase the principal amount thereof (other than by the amount of call premiums or accrued and unpaid interest payable on the Senior Subordinated Notes in connection with such refinancing and fees in connection therewith), (x) such Indebtedness is issued on customary market terms and conditions (including subordination terms) reasonably satisfactory to the Administrative Agent, (y) no Default or Event of Default exists and is continuing at the time of issuance thereof and (z) no part of the principal part of such Indebtedness shall have a maturity date earlier than the 91st day after the final maturity of the Term Loans hereunder; and (ii) Guarantee Obligations of any Subsidiary Guarantor in respect of such Indebtedness, provided that such Guarantee Obligations are subordinated to the obligations of such Subsidiary Guarantor under such letters the Guarantee and US Collateral Agreement to the same extent as the obligations of the US Borrower in respect of the Senior Subordinated Notes are subordinated to the Obligations;
(i) Indebtedness of any Group Member consisting of unsecured guarantees or other unsecured credit are supported by letters support obligations on customary market terms, including terms reasonably acceptable to the Administrative Agent, in respect of credit IRB Transactions in an aggregate amount not to exceed $20,000,000 at any one time outstanding;
(j) Indebtedness of any Group Member consisting of guarantees or other credit support obligations on customary market terms in respect of IRB Transactions; provided that such guarantees or other credit obligations are supported by one or more Letters of Credit;
(k) Indebtedness issued or provided under to insurance companies to finance insurance premiums payable to such insurance companies in connection with insurance policies purchased by a Loan Party in the Credit Agreement;ordinary course of business in an aggregate amount not to exceed $15,000,000 at any time outstanding; and
(l) additional Indebtedness of any Group Member in an aggregate principal amount not to exceed $7,500,000 at any one time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Waste Services, Inc.), Credit Agreement (Waste Services, Inc.)
Limitation on Indebtedness. (a) The Company and any Permitted Affiliate Parent will not, and will not cause or permit any of its the Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness); provided, unless however, that the Company, a Permitted Affiliate Parent and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) if, on the date of such Incurrence and after giving effect thereto on a pro forma basis,
(1) the Consolidated Net Leverage Ratio would not exceed 5.00 to 1.00; and
(2) to the extent that such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each caseSenior Secured Indebtedness, the Company's Consolidated Fixed Charge Coverage Senior Secured Net Leverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal would not exceed 4.00 to or greater than 2.00:11.00.
(b) Notwithstanding Section 4.09(a) will not prohibit the foregoingIncurrence of Indebtedness under the Loan Documents (including the Initial Revolving Credit Commitments, the Company andInitial Term Loans, Additional Facilities, Increases, Extended Term Loans and Loans made pursuant to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of Extended Revolving Commitments) or the following (collectively, the "Permitted Indebtedness")::
(i1) Indebtedness of the Company Company, a Permitted Affiliate Parent and any of the Restricted Subsidiaries under Credit Facilities, and any Refinancing Indebtedness in respect thereof, in the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed (A) an amount equal to the greater of (i)(a) $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement625.0 million, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and plus (b) the amount of any Credit Facilities incurred under Section 4.09(a)(2) or any other provision of this Section 4.09(b) to acquire any property, other assets or shares of Capital Stock of a Person, and (ii) 10.0% of Total Assets plus (B) any accrual or accretion of interest that increases the principal amount of Indebtedness under Credit Facilities, plus (C) in the case of any refinancing of any Indebtedness permitted under this Section 4.09(b)(1) or any portion thereof, the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) fees, underwriting discounts, premiums and other costs and expenses Incurred in excess of $20,000,000connection with such refinancing;
(ii2) Indebtedness of the Company or a Permitted Affiliate Parent owing to and held by any Restricted Subsidiary under any Inventory Facility;
(iiiother than a Receivables Entity) or Indebtedness of a Restricted Subsidiary owing to and held by the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to Company, a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company Permitted Affiliate Parent or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";(other than a Receivables Entity); provided, however, that:
(vA) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness of being beneficially held by a Person other than the Company owing to Company, a Restricted Subsidiary; provided that any Indebtedness of the Company owing to Permitted Affiliate Parent or a Restricted Subsidiary that is not (other than a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable Receivables Entity); and
(whether at Stated Maturity, acceleration B) any sale or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or other transfer of any such Indebtedness to a Person other than the Company, a Permitted Affiliate Parent or a Restricted Subsidiary (other than a dispositionReceivables Entity), pledge or transfer to a Restricted Subsidiary) shall be deemed deemed, in each case, to be constitute an incurrence Incurrence of such Indebtedness by the Company Company, such Permitted Affiliate Parent or such Restricted Subsidiary, as the case may be;
(3) (A) Indebtedness represented by the Initial Term Loans and the related guarantees thereof; (B) Indebtedness represented by the Columbus Senior Notes and the related guarantees thereof; (C) Indebtedness represented by the 2019 Sterling Bonds and the related guarantees thereof; and (D) Indebtedness under the Existing Senior Notes and the related guarantees thereof;
(4) any Indebtedness (other obligor not permitted by than the Indebtedness described in Section 4.09(b)(1), Section 4.09(b)(2) and Section 4.09(b)(3)) outstanding on the First Amendment Effective Date;
(5) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in Section 4.09(b)(3), Section 4.09(b)(4), this clause (vSection 4.09(b)(5), Section 4.09(b)(6), Section 4.09(b)(8), Section 4.09(b)(14), Section 4.09(b)(15), Section 4.09(b)(18), Section 4.09(b)(20), Section 4.09(b)(22), or Section 4.09(b)(25) or Incurred pursuant to Section 4.09(a);
(vi6) Indebtedness of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary owing to Incurred after the Company First Amendment Effective Date (A) Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company, a Permitted Affiliate Parent or another any Restricted Subsidiary; provided that any such Indebtedness Subsidiary or is made merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Company, any Permitted Affiliate Parent or any Restricted Subsidiary or was designated a Permitted Affiliate Parent or an intercompany note in Affiliate Subsidiary, (B) Incurred to provide all or a portion of the form attached as Annex A funds utilized to this Indenture; providedconsummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or a Permitted Affiliate Parent or was otherwise acquired by the Company, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company Permitted Affiliate Parent or a Restricted Subsidiary, or such Person was designated as a Permitted Affiliate Parent or an Affiliate Subsidiary or (C) shall be deemed to be an incurrence of Incurred and outstanding on the date on which such Indebtedness Restricted Subsidiary was acquired by the obligor not permitted by this clause (vi);
(vii) guarantees of any Company, a Permitted Affiliate Parent or a Restricted Subsidiary made in accordance or is merged, consolidated, amalgamated or otherwise combined with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) including pursuant to Interest Rate Agreements designed to protect any acquisition of assets and assumption of related liabilities) the Company Company, a Permitted Affiliate Parent or any Restricted Subsidiary against fluctuations (other than Indebtedness Incurred in interest rates in respect of Indebtedness contemplation of the Company transaction or any series of related transactions pursuant to which such Person became a Restricted Subsidiary as long as such obligations do not exceed or was otherwise acquired by the aggregate principal amount of such Indebtedness then outstandingCompany, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company a Permitted Affiliate Parent or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any a Restricted Subsidiary); provided, however, that with respect to Section 4.09(b)(6)(A) and Section 4.09(b)(6)(B) only, immediately following the consummation of the acquisition of such Currency Hedging Agreements do not increase Restricted Subsidiary by the Company, a Permitted Affiliate Parent or such other transaction, (i) the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.09(a)(1) after giving pro forma effect to the relevant acquisition or other obligations transaction and the Incurrence of such Indebtedness pursuant to this Section 4.09(b)(6) or (ii) the Consolidated Net Leverage Ratio would not be greater than immediately prior to such acquisition or such other transaction;
(7) Indebtedness under Currency Agreements, Commodity Agreements and Interest Rate Agreements entered into for bona fide hedging purposes of (A) the Company, any Permitted Affiliate Parent or the Restricted Subsidiaries and (B) C&W Communications and its Subsidiaries and, following a Permitted Affiliate Group Designation Date, the Common Holding Company and its Subsidiaries, in each case, and not for speculative purposes (as determined conclusively in good faith by the Board of Directors or senior management of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofPermitted Affiliate Parent);
(ix8) Indebtedness consisting of (A) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or mortgage financings, asset backed financings, Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personalfinancings, movable or immovable, property in each case incurred Incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction design, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary or (B) Indebtedness otherwise Incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Refinancing Indebtedness which refinances, replaces or refunds such Indebtedness, in an aggregate outstanding principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that which, when taken together with the principal amount of any all other Indebtedness permitted under Incurred pursuant to this clause (ix) did Section 4.09(b)(8), will not in each case at the time of incurrence exceed the Fair Market Valuegreater of (i) $200.0 million and (ii) 3.0% of Total Assets at any time outstanding so long as such Indebtedness exists on the date of, as determined by the Company in good faithor commissioning of, of the acquired or constructed asset contracting for, such purchase, design, development, construction, installation or improvement so financedimprovement, or is created within 270 days thereafter;
(x9) Indebtedness in respect of (A) workers’ compensation claims, casualty or liability insurance, self-insurance obligations, performance (including insurance policies), bid, indemnity, surety, judgment, appeal, completion, advance payment, customs, VAT or other tax or other guarantees or other similar bonds, instruments or obligations arising from agreements and completion guarantees and warranties provided by the Company Company, a Permitted Affiliate Parent or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business (or consistent with past practice or industry practice) or in respect of any government requirement, including, but not limited to, those Incurred to secure health, safety and environmental obligations or rental obligations, (B) letters of credit, bankers’ acceptances, guarantees, or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business (or consistent with past practice or industry practice) or in respect of any government requirement, including, but not limited to, letters of credit or similar instruments in respect of casualty or liability insurance, self-insurance, unemployment insurance, workers compensation obligations, health disability or other benefits, the CFA, pensions-related obligations and other social security laws, (C) the financing of insurance premiums or take-or-pay obligations contained in supply agreements, in each case, in the ordinary course of business and (D) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(10) Indebtedness Incurred constituting reimbursement obligations with respect to letters of credit issued and bank guarantees in the ordinary course of business provided to lessors of real property or otherwise in connection with the leasing of real property and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses in respect of any government requirement, or other Indebtedness with respect to reimbursement type obligations regarding the foregoing; provided, however, that upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;
(11) Indebtedness arising from agreements of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary providing for indemnification, customary purchase price closing adjustments, guarantees or obligations in respect of earn-outs or other adjustment of purchase price or similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business business, assets or assets Capital Stock of the Company, a Permitted Affiliate Parent or a Restricted Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds (including the fair market value of non-cash proceeds) actually received (in the case of dispositions) or paid (in the case of acquisitions) by the Company, any Permitted Affiliate Parent and the Restricted Subsidiaries in connection with such disposition or acquisition, as applicable;
(xi12) loan notesIndebtedness arising from (A) Bank Products and (B) the honoring by a bank or other financial institution of a check, if anydraft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, issued to a holder provided, however, that in the case of the shares this Section 4.09(b)(12)(B), such Indebtedness is extinguished within thirty Business Days of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital StockIncurrence;
(xii13) guarantees by the Company, a Permitted Affiliate Parent or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary (other than of any Indebtedness Incurred by the Company, a Permitted Affiliate Parent or Restricted Subsidiary in violation of this Section 4.09); provided, however, that if the Indebtedness being guaranteed is subordinated in right of payment to the Obligations, then such guarantee shall be subordinated substantially to the same extent as the relevant Indebtedness guaranteed;
(14) Indebtedness Incurred by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary after the First Amendment Effective Date to provide all or a portion of the Sytner Group plc and funds utilized to consummate the acquisition by the Company, a Permitted Affiliate Parent or a Restricted Subsidiary of any of its Subsidiaries Non-Controlling Interests in an aggregate principal amount at any time outstanding not to exceed $90,000,000 at 4.0x Pro forma Non-Controlling Interest EBITDA for the Test Period;
(15) Indebtedness of the Company, any one timePermitted Affiliate Parent or any Restricted Subsidiary Incurred pursuant to any guarantees of Indebtedness of any Parent; provided that for purposes of this Section 4.09(b)(15): (xiiii) obligations on the date of such Incurrence and after giving effect thereto on a pro forma basis the Consolidated Net Leverage Ratio would not exceed 5.00 to 1.00 (for the avoidance of doubt, outstanding Indebtedness for the purpose of calculating the Consolidated Net Leverage Ratio under this Section 4.09(b)(15) shall include any Indebtedness represented by guarantees by the Company, any Permitted Affiliate Parent or any of the Restricted Subsidiaries of Indebtedness of any Parent) and (ii) such guarantees shall be subordinated to the Obligations pursuant to the terms of the applicable Intercreditor Agreement;
(16) Subordinated Shareholder Loans;
(17) Indebtedness (including any Refinancing Indebtedness in respect thereof) of letters any Restricted Subsidiary under any local Credit Facility in an amount not to exceed the greater of credit (A) $200.0 million and (B) 3.0% of Total Assets;
(18) Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other credit support provided Indebtedness Incurred pursuant to this Section 4.09(b)(18) and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Company or a Permitted Affiliate Parent from the issuance or sale (other than to the Company, a Permitted Affiliate Parent or a Restricted Subsidiary) of Subordinated Shareholder Loans or its Capital Stock or otherwise contributed to the equity of the Company or a Permitted Affiliate Parent, in each case, subsequent to April 1, 2015 (and its in each case, other than through the issuance of Disqualified Stock, Preferred Stock or an Excluded Contribution); provided, however, that (A) any such Net Cash Proceeds that are so received or contributed shall be excluded for purposes of making Restricted Subsidiaries Payments under Section 4.07(a)(C)(ii), Section 4.07(a)(C)(iii) and Section 4.07(b)(1) to the extent the Company, a Permitted Affiliate Parent or any Restricted Subsidiary Incurs Indebtedness in reliance thereon and (B) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this Section 4.09(b)(18) to the ordinary course of business provided extent the Company, a Permitted Affiliate Parent or any Restricted Subsidiary makes a Restricted Payment under Section 4.07(a)(C)(ii), Section 4.07(a)(C)(iii) and Section 4.07(b)(1) in reliance thereon, provided, further, that the obligations under such letters proceeds of credit are supported any Cure Amounts and any Net Cash Proceeds so received that were subsequently used to fund the Special Dividend shall not be taken into account for the purposes of this Section 4.09(b)(18);
(19) Indebtedness of the Company, a Permitted Affiliate Parent or any Restricted Subsidiary relating to any VAT liabilities or deferral of PAYE taxes with the agreement of the U.K. HM Revenue and Customs (including guarantees by letters a Restricted Subsidiary in favor of credit or other credit support issued or provided under the Credit Agreement;U.K. HM Revenue and Customs in connection with the U.K. tax liability of the Company, a Permitted Affiliate Paren
Appears in 2 contracts
Sources: Credit Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, any Loan Party (other than the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal Parent) pursuant to or greater than 2.00:1.any Loan Document;
(b) Notwithstanding Indebtedness of (i) the foregoingBorrower owed to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor owed to the Company andBorrower or to any other Subsidiary Guarantor, (iii) to the extent specifically set forth belowthat it is permitted by Section 7.7(c)(iii), the Restricted Subsidiaries may incur each and all any Subsidiary of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including DOC owed to DOC or to any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted other Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted SubsidiaryCellular Partnership) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause DOC and (v);
(viiv) Indebtedness of a Restricted Subsidiary owing DOC owed to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made Borrower and advanced in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xiSection 4.16(a)(ii)(y) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 70,000,000 or (y) Section 7.6(c);
(c) Indebtedness (including Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed $40,000,000 at any one time; time outstanding;
(xiiid) obligations Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without any increase in respect the principal amount thereof outstanding at the time of letters such refinancing, refunding, renewal or extension, or any shortening of credit the maturity of any principal amount thereof and otherwise on terms not materially less favorable to the Parent and the issuer thereof than under the refinanced, refunded, renewed or other credit support provided by the Company and its Restricted Subsidiaries extended Indebtedness);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower, DOC or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) Indebtedness of DOC, the Borrower or any Subsidiary Guarantor owed to the Parent which is subordinated to the Obligations on terms acceptable to the Administrative Agent;
(g) Indebtedness of any Cellular Partnership owed to the Borrower, DOC or any Subsidiary Guarantor, provided that (i) such Indebtedness is evidenced by a promissory note the form and substance of which, including amortization schedules, are acceptable to Administrative Agent, (ii) such promissory note is secured by a first priority perfected security interest (to the extent permitted by applicable law) in all of the assets of such Cellular Partnership, (iii) such promissory note is pledged, and has been delivered, to the Administrative Agent pursuant to the Guaranty and Collateral Agreement as security for the Obligations and (iv) the aggregate principal amount of all such Indebtedness under this Section 7.2(g) shall not exceed $30,000,000 at any one time outstanding;
(h) Indebtedness of Foreign Subsidiaries of DOC in an aggregate principal amount not to exceed the Dollar equivalent (as determined by the Administrative Agent from time to time) of $5,000,000 at any one time outstanding;
(i) Indebtedness of the Borrower under an Additional Facility in an aggregate principal amount not to exceed $200,000,000 and which meets the requirements specified in clauses (i) through (vii) of Section 11.1(b), provided that the obligations under documentation giving effect to any such Additional Facility (whether or not pursuant to any amendment to the Loan Documents) shall be in form and substance satisfactory to the Administrative Agent;
(j) Indebtedness of the Borrower or DOC pursuant to senior unsecured notes (which may be guaranteed on a senior unsecured basis by the Borrower and each Guarantor) used to refinance all or part of the Term Loans and any Additional Term Loans; provided that such Indebtedness matures not less than six months following the final maturity of the Facilities and any Additional Facilities, the weighted average life of such Indebtedness is longer than the Facilities and any Additional Facilities and all other terms of such Indebtedness are acceptable to the Administrative Agent;
(k) Indebtedness with respect to letters of credit are supported and banker's acceptances (which have been notified by letters the Borrower in writing to the Administrative Agent) in an aggregate face amount not to exceed at any time $20,000,000 minus the aggregate amount of credit or other credit support issued or provided under any Letters of Credit and Reimbursement Obligations outstanding at such time pursuant to this Agreement; and
(l) Other Indebtedness not to exceed the Credit Agreement;amount of $5,000,000 at any one time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Dobson Communications Corp), Credit Agreement (Dobson Communications Corp)
Limitation on Indebtedness. (a) The Company Holdings and the Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, directly or indirectly, create, incur, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurliable, contingently or otherwise with respect to any Indebtedness, except:
(collectively, "incur"), a) (i) Indebtedness arising under the Credit Documents and (ii) Indebtedness under the Revolving Credit Documents (subject to the limitations set forth in the Intercreditor Agreement) and any Permitted Refinancing Indebtedness (including any Acquired incurred to Refinance such Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Indebtedness of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of Holdings, the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of Guarantor owing to Holdings, the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company Borrower or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to owing shall be evidenced by an intercompany note substantially in the form attached as Annex A of Exhibit J, (ii) any Subsidiary that is not a Subsidiary Guarantor owing to this Indenture; providedany other Subsidiary that is not a Subsidiary Guarantor and (iii) to the extent permitted by Section 9.5, furtherany Subsidiary that is not a Subsidiary Guarantor owing to Holdings, that the Borrower or any disposition, pledge or transfer Subsidiary Guarantor.
(c) Indebtedness in respect of any such Indebtedness to a Person (other than a dispositionbankers’ acceptance, pledge bank guarantees, letter of credit, warehouse receipt or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor similar facilities entered into in the ordinary course of business (aincluding in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims) pursuant to Interest Rate Agreements designed to protect the Company or but in any event, not in respect of Hedging Agreements;
(d) except as provided in clauses (h), (k), and (l) below, Guarantee Obligations incurred by (i) any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement and (ii) Holdings or the Borrower in respect of Indebtedness of the Borrower or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating that is permitted to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, be incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Goodman Global Group, Inc.), Term Loan Credit Agreement (Goodman Sales CO)
Limitation on Indebtedness. (a) The Company Parent Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, create, issue, incur, assume, guarantee assume or otherwise in suffer to exist any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) . Notwithstanding the foregoing, the Company and, to the extent specifically limitations set forth below, in the Restricted Subsidiaries may incur each and all immediately preceding sentence shall not apply to any of the following (collectively, the "Permitted Indebtedness"):following:
(ia) Indebtedness of the Company arising under the Company's Credit Agreement Documents (including any refinancing Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(as defined belowb) of such Indebtedness) Indebtedness under the Term Loan Credit Documents and any Refinancing Indebtedness thereof, in an aggregate principal amount at any one time outstanding not to exceed the sum of (i) $920,000,000 2,925,000,000 plus (ii) the principal amount of “Incremental Facilities” (as defined in any case under the Term Loan Credit Agreement or as in respect effect on the Closing Date) measured at the time of letters of credit under incurrence pursuant to the Term Loan Credit Agreement, and guarantees by Guarantors Agreement as in respect thereof; provided, however, that effect on the foregoing amount shall be reduced by Closing Date plus (aiii) solely in the U.S. dollar equivalent case of any loan notes referred to in clause such Refinancing Indebtedness, the Refinancing Increased Amount with respect thereto.
(xic) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000[reserved];
(iid) subject to compliance with Section 10.5, Indebtedness of the Company Parent Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant owed to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company Parent Borrower or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that all such Indebtedness of any Credit Party owed to any Person that is not a Credit Party shall be (x) evidenced by the Intercompany Subordinated Note (provided that any Person becoming a Restricted Subsidiary after the Closing Date may enter into the Intercompany Subordinated Note within the time period set forth in Section 9.11) or (y) otherwise be subject to subordination terms substantially identical to the subordination terms set forth in the Intercompany Subordinated Note or otherwise reasonably acceptable to the Administrative Agent;
(e) subject to compliance with Section 10.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Company owing Parent Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement and (ii) the Parent Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (x) if the Indebtedness being guaranteed under this Section 10.1(e) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of the Obligations on terms (taken as a whole) at least as favorable to the Lenders as those contained in the subordination of such Indebtedness and (y) a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to U.S. Credit Party may not, by virtue of this Indenture and is unsecured and subordinated in right of payment from and after Section 10.1(e), guarantee Indebtedness that such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations Restricted Subsidiary could not otherwise incur under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Section 10.1;
(vif) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer respect of any such Indebtedness to a Person (other than a dispositionbankers’ acceptance, pledge bank guarantees, letter of credit, warehouse receipt or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor similar facilities entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness of the Company or any Restricted Subsidiary as long as such with respect to reimbursement-type obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, regarding workers compensation claims and similar obligations);
(bg) under any Currency Hedging Agreements, relating to Guarantee Obligations (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business in respect of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company (or any Restricted Subsidiary outstanding to) suppliers, customers, franchisees, lessors and licensees, (ii) otherwise constituting Investments permitted by Section 10.5 (other than as a result Investments permitted by Section 10.5(l) by reference to Section 10.1 and Section 10.5(q)); provided that this clause (ii) shall not be construed to limit the requirements of fluctuations in foreign currency exchange rates or by reason of feesSection 10.1(d) and (e), indemnities and compensation payable under such Currency Hedging Agreements or (ciii) under any Commodity Price Protection Agreements which do not increase contemplated by the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofPlan;
(ixh) Indebtedness of the Company or any Restricted Subsidiary represented by (including Indebtedness arising under Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness Leases) incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of to finance the purchase price or price, cost of construction design, acquisition, construction, repair, restoration, replacement, expansion, installation or improvement of property used fixed or capital assets or otherwise in the business respect of capital expenditures, so long as such Indebtedness is incurred concurrently with or within 270 days of the Companyacquisition, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Valueconstruction, as determined by the Company in good faithrepair, of the acquired or constructed asset restoration, replacement, expansion, installation or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness fixed or capital assets or incurrence of the Sytner Group plc such capital expenditure, and any of its Subsidiaries Refinancing Indebtedness thereof, in an aggregate principal amount not to exceed (i) the greater of (x) $90,000,000 160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance plus the principal amount of Capital Leases outstanding on the Closing Date, in each case at any one timetime outstanding plus (ii) solely in the case of any such Refinancing Indebtedness, the Refinancing Increased Amount with respect thereto;
(i) Indebtedness permitted to remain outstanding under the Plan, and to the extent such Indebtedness exceeds $5,000,000, set forth on Schedule 10.1 and any Refinancing Indebtedness thereof; provided that in the case of any Refinancing Indebtedness of any such Indebtedness, each obligor of such Refinancing Indebtedness is an obligor of such Indebtedness;
(xiiij) Indebtedness in respect of Hedging Agreements; provided that such Hedging Agreements are not entered into for speculative purposes (as determined by the Parent Borrower in good faith);
(i) Permitted Other Debt assumed or incurred for any purpose, including to finance a Permitted Acquisition, other permitted Investments or capital expenditures; provided that (A) if such Indebtedness is incurred or assumed by a Restricted Subsidiary that is not a Credit Party, such Indebtedness is not guaranteed in any respect by the Parent Borrower or any other Guarantor except as permitted under Section 10.5, (B) the aggregate principal amount of Indebtedness incurred or assumed under this Section 10.1(k)(i) shall not exceed (1) the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance plus (2) additional amounts if, on a Pro Forma Basis after giving effect to the incurrence or assumption of such Indebtedness and the application of proceeds thereof and, if applicable, the Permitted Acquisition, permitted Investment or capital expenditure, the Consolidated Total Net Leverage Ratio is not greater than 3.30 to 1.00 or, to the extent incurred or assumed in connection with a Permitted Acquisition or similar Investment, the Consolidated Total Net Leverage Ratio (on a Pro Forma Basis for such transaction and the incurrence or assumption of such Indebtedness) is not greater than (I) 3.30 to 1.00 or (II) the Consolidated Total Net Leverage Ratio immediately prior to such Permitted Acquisition or similar Investment and (C) [reserved] and (ii) any Refinancing Indebtedness in respect of the Indebtedness under clause (i) above; provided that Indebtedness incurred or assumed by Restricted Subsidiaries that are not U.S. Subsidiary Guarantors under this Section 10.1(k), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not U.S. Subsidiary Guarantors pursuant to Section 10.1(ee), shall not exceed the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance, in each case at any time outstanding;
(l) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations not in connection with money borrowed, in each case provided in the ordinary course of business or consistent with past practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business (including in respect of construction or restoration activities) or consistent with past practice;
(m) additional Indebtedness; provided that the aggregate amount of Indebtedness incurred or issued pursuant to this Section 10.1(m) shall not exceed the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance, in each case at any time outstanding;
(n) Indebtedness in respect of Cash Management Services and other Indebtedness in respect of overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements in the ordinary course of business;
(i) Indebtedness incurred in the ordinary course of business in respect of obligations of the Parent 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 and (ii) Indebtedness in respect of intercompany obligations of the Parent Borrower or any Restricted Subsidiary with the Parent Borrower or any Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;
(p) Indebtedness arising from agreements of the Parent Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Permitted Acquisitions, other Investments and the Disposition of any business, assets or Stock or Stock Equivalents permitted hereunder;
(q) Indebtedness of the Parent Borrower or any Restricted Subsidiary consisting of (i) financing of insurance premiums or (ii) take or pay obligations contained in supply agreements, in each case arising in the ordinary course of business;
(r) Indebtedness representing deferred compensation, or similar arrangement, to employees, consultants or independent contractors of the Parent Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(s) Indebtedness consisting of promissory notes issued by the Parent Borrower or any Restricted Subsidiary to present or former officer, manager, consultant, director or employee (or their respective wealth management vehicles, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) to finance the purchase or redemption of Stock or Stock Equivalents of the Parent Borrower (or any direct or indirect parent thereof) permitted by Section 10.6(b);
(t) Indebtedness consisting of obligations of the Parent Borrower and the Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions and Permitted Acquisitions or any other Investment permitted hereunder;
(u) Indebtedness in respect of (i) Permitted Receivables Financings owed by a Receivables Entity or Qualified Securitization Financings owed by a Securitization Subsidiary and (ii) accounts receivable factoring facilities in the ordinary course of business; provided that the aggregate amount of Receivables Indebtedness pursuant to this clause (u) shall not exceed $160,000,000 at any time outstanding;
(v) Indebtedness in respect of (i) [reserved], (ii) Incremental Equivalent Debt (as defined in, and subject to the limitations set forth in, the Term Loan Credit Agreement as in effect on the date hereof; provided that references therein to “Permitted Other Loans” and “Permitted Other Notes” shall be deemed to be references to such terms as defined herein and references to Section 10.1(k) therein shall be deemed to be references to Section 10.1(k) hereof); and (iii) any Refinancing Indebtedness in respect thereof;
(w) [reserved];
(x) Indebtedness in an amount not to exceed the Available Equity Amount;
(y) Indebtedness of any Minority Investments or Indebtedness incurred on behalf thereof or representing guarantees of such Indebtedness of any Minority Investment, in an amount not to exceed the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance, in each case at any time outstanding;
(z) intercompany Indebtedness among the Parent Borrower and its Subsidiaries constituting any part of any Permitted Reorganization;
(aa) to the extent constituting Indebtedness, customer deposits and advance payments (including progress payments) received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(i) Indebtedness of the Parent Borrower or any Restricted Subsidiary supported by a letter of credit, in a principal amount not in excess of the stated amount of such letter of credit so long as such letter of credit is otherwise permitted to be incurred pursuant to this Section 10.1 or (ii) obligations in respect of letters of credit support, guarantees or similar obligations issued, made or incurred for the benefit of the Parent Borrower or any Subsidiary of the Parent Borrower in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other credit support provided than the United States;
(cc) Indebtedness owing to the seller of any business or assets permitted to be acquired by the Company and its Parent Borrower or any Restricted Subsidiaries in the ordinary course of business Subsidiary under this Agreement; provided that the aggregate amount of Indebtedness permitted under this clause (cc) shall not exceed the greater of $160,000,000 and 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at any time;
(dd) obligations in respect of Disqualified Stock in an amount not to exceed the greater of $25,000,000 and 3% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at any time;
(ee) Indebtedness incurred by Restricted Subsidiaries that are not U.S. Subsidiary Guarantors under this clause (ee), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not U.S. Subsidiary Guarantors pursuant to Section 10.1(k), shall not exceed the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(ff) so long as the Payment Conditions have been satisfied at the time of incurrence and after giving effect thereto, unsecured Indebtedness of a Credit Party; provided that the scheduled final maturity date and the Weighted Average Life to Maturity of such letters Indebtedness shall not be earlier than the Initial Maturity Date; and
(gg) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (ff) above. For the avoidance of credit are supported by letters doubt, any Indebtedness permitted to be incurred under any clause of credit this Section 10.1 may be used to modify, refinance, refund, renew, replace, exchange or extend any outstanding Indebtedness, including any such Indebtedness incurred under any other credit support issued clause of this Section 10.1 and any such Indebtedness with respect to which the incurrence of Refinancing Indebtedness is expressly permitted under this Section 10.1, in each case, subject to the restrictions set forth in Section 10.7. Accrual of interest or provided under dividends, the Credit Agreement;accretion of accreted value, the accretion or amortization of original issue discount and the payment of interest or dividends in the form of additional Indebtedness or Disqualified Stock will not be deemed to be an incurrence or issuance of Indebtedness or Disqualified Stock for purposes of this covenant. This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior to any other senior Indebtedness merely because it has a junior lien priority with respect to the same collateral.
Appears in 2 contracts
Sources: Abl Credit Agreement (Avaya Holdings Corp.), Abl Credit Agreement (Avaya Holdings Corp.)
Limitation on Indebtedness. (a) The Company Parent Guarantor will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurindirectly, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including Acquired Indebtedness) and the Parent Guarantor will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided that the Parent Guarantor may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), unless such Indebtedness is incurred by issue shares of Disqualified Stock and issue shares of Preferred Stock, if the Company or any Consolidated Total Leverage Ratio of the Parent Guarantor or constitutes Acquired Indebtedness of a and its Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period Subsidiaries is at least equal 6.25 to or greater than 2.00:1.
1.00, determined on a pro forma basis after giving effect thereto (b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all including a pro forma application of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtednessnet proceeds therefrom); provided, further, that Non-Guarantors may not Incur Indebtedness if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $100 million and (b) 1.0% of Total Assets at the time of such Incurrence of Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph.
(b) SECTION 3.2(a) will not prohibit the Incurrence of the following:
(1) Indebtedness Incurred pursuant to any dispositionCredit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), pledge in a maximum aggregate principal amount at any time outstanding not exceeding (i) the sum of (a) $3,950 million plus (b) the greater of $960 million and 100% of LTM EBITDA; plus (ii) any Refinancing Indebtedness in respect thereof;
(2) Guarantees by the Parent Guarantor or transfer any Restricted Subsidiary of Indebtedness or other obligations of the Parent Guarantor or any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence Subsidiary so long as the Incurrence of such Indebtedness or other obligations is not prohibited by the Company terms of this Indenture; provided that if the Indebtedness being Guaranteed constitutes Pari Passu Indebtedness or other obligor not permitted by this clause (v)Subordinated Indebtedness, the Guarantees must be pari passu with or subordinated to the same extent as the Notes or Note Guarantees;
(vi3) Indebtedness of the Parent Guarantor owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Parent Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Currency Hedging Agreements do not increase Indebtedness being beneficially held by a Person other than the Indebtedness Parent Guarantor or a Restricted Subsidiary; and
(ii) any sale or other obligations transfer of any such Indebtedness to a Person other than the Company Parent Guarantor or a Restricted Subsidiary; shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Parent Guarantor or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (a) the Notes (other than any Additional Notes), including any Guarantee thereof, (b) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1) and (3) above) outstanding on the Issue Date, and any Guarantee thereof, (c) Refinancing Indebtedness (including, with respect to the Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4) or clauses (2), (5), (10) or (19) of this SECTION 3.2(b) or Incurred pursuant to SECTION 3.2(a), and (d) Management Advances;
(5) Indebtedness of (x) the Parent Guarantor or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates Incurred or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements issued to finance an acquisition or (cy) under Persons that are acquired by the Parent Guarantor or any Commodity Price Protection Agreements which do not increase Restricted Subsidiaries or merged into or consolidated with the Parent Guarantor or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that on the date the acquisition, merger or consolidation, as applicable, is consummated, and after giving pro forma effect to the Incurrence of such Indebtedness, either (A) the total amount of Indebtedness Incurred and outstanding under this clause (5) is in an aggregate amount not to exceed the greater of (x) $200 million and (y) 2.5% of Total Assets at the time of such acquisition, merger or other obligations consolidation, or (B) any of the Company following are satisfied as of the date of incurrence (i) the Parent Guarantor would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to SECTION 3.2(a), (ii) the Consolidated Total Leverage Ratio of the Parent Guarantor and the Restricted Subsidiaries would not be higher than that immediately prior to such acquisition, merger or any consolidation, or (iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(6) Swap Obligations (excluding Swap Obligations entered into for speculative purposes (as determined in the good faith judgment of the Parent Guarantor));
(7) Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other than as a result Indebtedness Incurred pursuant to this clause and then outstanding, does not exceed the greater of fluctuations in commodity prices or by reason (a) $200 million and (b) 2.5% of fees, indemnities Total Assets at the time of Incurrence and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors any Refinancing Indebtedness in respect thereof;
(ix8) Indebtedness in respect of (a) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment (including progress premiums), customs, value added or other - 118 - Indebtedness incurred tax or assumed in connection with the acquisition other guarantees or development of real other similar bonds, instruments or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; obligations and completion guarantees and warranties provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company Parent Guarantor or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice; (b) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five (5) Business Days of Incurrence; (c) customer deposits and advance payments (including progress premiums) received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; (d) letters of credit, bankers’ acceptances, warehouse receipts, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice; and (e) Cash Management Services;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Parent Guarantor and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Parent Guarantor and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Parent Guarantor from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or otherwise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Parent Guarantor, in each case, subsequent to the Issue Date, and any Refinancing Indebtedness in respect thereof; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Parent Guarantor and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause to the extent such Net Cash Proceeds or cash have been applied to make Restricted Payments;
(xi11) loan notesIndebtedness of Non-Guarantors in an aggregate amount, if anytogether with any Refinancing Indebtedness in respect thereof, not to exceed the greater of (a) $100 million and (b) 1.0% of Total Assets at the time of Incurrence and at any time outstanding;
(12) Indebtedness consisting of promissory notes issued by the Parent Guarantor or any of its Subsidiaries to a holder any current or former employee, director or consultant of the shares Parent Guarantor, any of its Subsidiaries or any Parent Entity (or permitted transferees, assigns, estates or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital StockParent Guarantor or any Parent Entity that is permitted by SECTION 3.3;
(xii13) Indebtedness of the Sytner Group plc and Parent Guarantor or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (a) $300 million and (b) 3.5% of Total Assets at the time of Incurrence;
(15) [Reserved];
(16) Indebtedness of the Parent Guarantor or any Guarantor arising pursuant to any Permitted Tax Restructuring, subject to complying with the express terms and conditions of the definition of “Permitted Tax Restructuring”;
(17) Indebtedness owed to the seller of any business or assets permitted to be acquired by the Parent Guarantor or any Restricted Subsidiary under this Indenture; provided that the aggregate amount of Indebtedness Incurred pursuant to this clause and then outstanding will not exceed $80 million;
(18) obligations in respect of Disqualified Stock in an amount not to exceed $90,000,000 75 million outstanding at any time;
(19) up to $60 million of liquidation preference or stated value of the iHeart Operations Preferred Stock, provided that, for the avoidance of doubt, the $60 million of liquidation preference or stated value cannot increase due to any anti-dilution or other similar terms of such preferred stock;
(20) Indebtedness permitted to remain outstanding under the Bankruptcy Plan, the Company’s guarantee of performance under the Transition Services Agreement and Indebtedness arising therefrom as well as Indebtedness from the Company’s indemnification obligations under the Tax Matters Agreement, and any Refinancing Indebtedness in respect thereof; and
(21) Indebtedness incurred by the Parent Guarantor or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are deposited with the Trustee within five (5) Business Days to satisfy or discharge the Notes or exercise the Company’s legal defeasance or covenant defeasance, in each case, in accordance with this Indenture.
(c) For purposes of determining compliance with, and the outstanding amount of any particular Indebtedness, Disqualified Stock or Preferred Stock, Incurred or issued pursuant to and in compliance with, this SECTION 3.2:
(1) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one timeof the types of Indebtedness described in SECTIONS 3.2(a) and 3.2(b), the Parent Guarantor, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in SECTION 3.2(a) or one of the clauses of SECTION 3.2(b); provided that Indebtedness outstanding on the Issue Date under the Credit Agreement shall be treated as incurred under SECTION 3.2(b)(1) and may not be reclassified;
(xiii2) additionally, except as set forth in SECTION 3.2(c)(1) above, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in SECTIONS 3.2(a) and 3.2(b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification;
(3) in the case of any Refinancing Indebtedness, such Indebtedness shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing;
(4) Guarantees of, or obligations in respect of letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the ordinary course determination of business provided that the a particular amount of Indebtedness shall not be included;
(5) if obligations under such in respect of letters of credit credit, bankers’ acceptances or other similar instruments are supported by Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to of SECTION 3.2(a) or SECTION 3.2(b) and the letters of credit credit, bankers’ acceptances or other credit support similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(6) the amount of any Disqualified Stock of the Parent Guarantor or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the liquidation preference thereof on the date of issuance;
(7) Indebtedness, Disqualified Stock or Preferred Stock, permitted by this SECTION 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness, Disqualified Stock or Preferred Stock, but may be permitted in part by one such provision and in part by one or more other provisions of this SECTION 3.2 permitting such Indebtedness, Disqualified Stock or Preferred Stock; and
(8) the amount of Indebtedness issued at a price less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of GAAP.
(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or provided amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness or the issuance of Disqualified Stock or Preferred Stock for purposes of this SECTION 3.2.
(e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by such Restricted Subsidiary of the Parent Guarantor as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this SECTION 3.2, the Credit Agreement;Parent Guarantor shall be in default of this SECTION 3.2).
(f) For purposes of determining compliance with any Do
Appears in 2 contracts
Sources: Indenture (Broader Media Holdings, LLC), Indenture (Broader Media, LLC)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries toSubsidiary to Incur any Indebtedness; provided, createhowever, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that (x) the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00 and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding clause (x) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed an amount equal to the greater of $100.0 million and 25.0% of Consolidated Tangible Assets at any time outstanding.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other credit support than pursuant to any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to the sum of (A) (i) $900.0 million minus (ii) the amount of any voluntary repayment of Initial Term Loans and reductions in Initial Revolving Commitments that increase the “Maximum Incremental Facilities Amount” pursuant to the definition thereof, plus (B) an amount not in excess of the Maximum Incremental Facilities Amount (provided that any such Indebtedness Incurred in the form of term loans secured on an equal and ratable basis by the Company and its Restricted Subsidiaries same Collateral securing the Senior Credit Facility Obligations shall be subject to clause (v) of the proviso to Section 2.9(d)) plus (C) in the ordinary course event of business any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Borrower or any Restricted Subsidiary to any Restricted Subsidiary; provided that the obligations under any subsequent issuance or transfer of any Capital Stock of such letters of credit are supported by letters of credit Restricted Subsidiary to which such Indebtedness is owed, or other credit support issued event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or provided under any other subsequent transfer of such Indebtedness (except to the Credit AgreementBorrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this subsection 7.1(b)(ii);
Appears in 2 contracts
Sources: Credit Agreement (Frontdoor, Inc.), Credit Agreement (Servicemaster Global Holdings Inc)
Limitation on Indebtedness. (a) The Company will Issuer shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Issuer and any of the Subsidiary Guarantors may Incur Indebtedness (a) including Acquired Indebtedness), if on the U.S. dollar equivalent date of any loan notes referred such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries is greater than 2.00 to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and 1.00.
(b) Section 3.2(a) shall not prohibit the Incurrence of the following Indebtedness:
(1) Indebtedness of the Issuer and the Subsidiary Guarantors Incurred pursuant to any Credit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), and (without duplication) any Guarantees by the Issuer or any Subsidiary Guarantor in respect of such Indebtedness, in a maximum aggregate principal amount of all Indebtedness Incurred under this Section 3.2(b)(1), Section 3.2(b)(4)(i) (and, without duplication, any Refinancing Indebtedness in respect of such Indebtedness Incurred under Section 3.2(b)(4)(i) that is Incurred under Section 3.2(b)(4)(iii) (and, without duplication, any such successive Refinancing Indebtedness in respect thereof)) and Section 3.2(b)(15) at any time outstanding not exceeding (i) $8,000,000,000, plus (ii) in the case of any refinancing of any Indebtedness permitted under this clause or any portion thereof, the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in excess of $20,000,000connection with such refinancing;
(ii2) Guarantees by the Issuer or any Subsidiary Guarantor of Indebtedness of the Issuer or any Restricted Subsidiary so long as the Incurrence of such Indebtedness is permitted under the terms of this Indenture;
(3) Indebtedness of the Company or Issuer owing to and held by any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company Issuer or any Restricted Subsidiary; provided, however, that that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Currency Hedging Agreements do not increase Indebtedness being beneficially held by a Person other than the Issuer or a Restricted Subsidiary; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Issuer or a Restricted Subsidiary, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (i)(A) the Notes (other than any Additional Notes), including any Guarantee thereof and (B) the Other Notes issued on the Issue Date, including any Guarantee thereof, (ii) any Indebtedness (other than Indebtedness Incurred pursuant to Section 3.2(b)(1), (3) and (4)(i)) outstanding on the Issue Date, including any Guarantee thereof, (iii) Refinancing Indebtedness Incurred in respect of any Indebtedness described in this Section 3.2(b)(4) or Section 3.2(b)(5) (subject to the extent the Indebtedness being Refinanced was Incurred under Section 3.2(b)(5)(iii) (or other obligations is Refinancing Indebtedness in respect thereof), to the requirements of Section 3.2(b)(5)(iii) or Incurred pursuant to Section 3.2(a), and (iv) Management Advances;
(5) (x) Indebtedness of the Company Issuer or any Subsidiary Guarantor Incurred or issued to finance an acquisition or (y) Acquired Indebtedness; provided, however, that after giving pro forma effect to such acquisition, merger or consolidation, and the Incurrence of such Indebtedness (including pro forma application of the proceeds thereof), either:
(i) the Issuer would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 3.2(a);
(ii) the Fixed Charge Coverage Ratio of the Issuer and the Restricted Subsidiaries would not be lower than such ratio immediately prior to such acquisition, merger or consolidation; or
(iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred (without giving effect to the last sentence of the definition of “Acquired Indebtedness” or the proviso in the definition of “Incur”) in contemplation of the transaction or series of related transactions pursuant to which such Persons became a Restricted Subsidiary or was otherwise acquired by the Issuer or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness and any Refinancing Indebtedness in respect thereof shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(6) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations in an aggregate outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of feesprincipal amount which, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase when taken together with the principal amount of all other Indebtedness or other obligations Incurred pursuant to this clause and then outstanding, does not exceed the greater of (i) $875,000,000 and (ii) 4.0% of Total Assets at the Company or any Restricted Subsidiary outstanding other than as a result time of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection AgreementsIncurrence, and guarantees by Guarantors any Refinancing Indebtedness in respect thereof;
(ix8) Indebtedness in respect of (i) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other - 118 - Indebtedness incurred tax or assumed in connection with the acquisition other guarantees or development of real other similar bonds, instruments or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; obligations and completion guarantees and warranties provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company Issuer or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice, (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five (5) Business Days of Incurrence; (iii) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; and (iv) any customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, cash pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business or consistent with past practice;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Restricted SubsidiarySubsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition);
(xi10) loan notes, if any, issued [reserved];
(11) Indebtedness of Non-Guarantor Subsidiaries in an aggregate amount not to a holder exceed the greater of (a) $1,100,000,000 and (b) 5.0% of the shares Total Assets at any time outstanding;
(12) Indebtedness consisting of promissory notes issued by the Issuer or any of its Subsidiaries to any current or former employee, director or consultant of the Issuer, any of its Subsidiaries or any Parent Entity (or permitted transferees, assigns, estates, or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital StockIssuer or any Parent Entity that is permitted by Section 3.3;
(xii13) Indebtedness of the Sytner Group plc and Issuer or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice;
(14) Indebtedness of the Issuer or any Subsidiary Guarantor in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, shall not exceed the greater of (i) $1,100,000,000 and (ii) 5.0% of Total Assets;
(15) Indebtedness Incurred pursuant to a Qualified Receivables Transaction; provided, however, that, at the time of such Incurrence, the Issuer would have been entitled to Incur Indebtedness pursuant to clause (1) above in an amount equal to the Receivables Transaction Amount of such Qualified Receivables Transaction;
(16) Physician Support Obligations Incurred by the Issuer or any Restricted Subsidiary; and
(17) Non-Recourse Indebtedness of Restricted Subsidiaries in an aggregate principal amount not to exceed the greater of (a) $90,000,000 875,000,000 and (b) 4.0% of Total Assets at any time outstanding.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:
(1) subject to Section 3.2(c)(3), in the event that all or any portion of any item of Indebtedness meets the criteria of more than one time; of the types of Indebtedness described in Section 3.2(a) and (xiiib), the Issuer, in its sole discretion, may divide and classify, and may from time to time divide and reclassify under Section 3.2(c)(2), such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of the clauses of Section 3.2(a) or (b);
(2) subject to Section 3.2(c)(3), additionally, all or any portion of any item of Indebtedness may later be classified as having been Incurred pursuant to any type of Indebtedness described in Section 3.2(a) and (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification;
(3) all Indebtedness outstanding on the Issue Date under the Credit Agreement and ABL Facility Agreement shall be deemed to have been Incurred on the Issue Date under Section 3.2(b)(1) and may not be reclassified at any time pursuant to clause (1) or (2) of this Section 3.2(c);
(4) in the case of any refinancing of any Indebtedness permitted under Section 3.2(b)(7), (11), (14) or (17) or any portion thereof, such Indebtedness shall be permitted to include additional Indebtedness to pay the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses Incurred in connection with such refinancing;
(5) Guarantees of, or obligations in respect of letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the ordinary course determination of business provided a particular amount of Indebtedness shall not be included;
(6) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to Section 3.2(a) or Section 3.2(b)(1), (7), (11), (14) or (17) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included to the extent of the amount treated as so Incurred;
(7) the principal amount of any Disqualified Stock of the Issuer or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, shall be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(8) Indebtedness permitted by this Section 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 3.2 permitting such Indebtedness;
(9) the amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (ii) the principal amount of Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness; and
(10) the principal amount of Indebtedness outstanding under any clause of this covenant shall be determined after giving effect to the application of proceeds of any Indebtedness incurred to refinance such original Indebtedness.
(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, shall not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2.
(e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Issuer as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 3.2, the Issuer shall be in default of this Section 3.2).
(f) Notwithstanding any other provision of this Section 3.2, the maximum amount of Indebtedness that the obligations under Issuer or a Restricted Subsidiary may Incur pursuant to this Section 3.2 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to Refinance other Indebtedness, if Incurred in the same currency as the Indebtedness being refinanced, shall be calculated based on the currency exchange rate in effect on the date such letters Indebtedness was originally incurred, in the case of term indebtedness, or first committed, in the case of revolving credit are supported indebtedness. The principal amount of any Indebtedness Incurred 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 Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
(g) [Reserved].
(h) Unsecured Indebtedness shall not be treated as subordinated or junior to Secured Indebtedness merely because it is unsecured, and senior Indebtedness shall not be treated as subordinated or junior to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral or is secured by letters of credit or other credit support issued or provided under the Credit Agreement;different collateral.
Appears in 2 contracts
Sources: Indenture (Community Health Systems Inc), Indenture (Community Health Systems Inc)
Limitation on Indebtedness. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Company and the Subsidiary Guarantors may Incur Indebtedness if on the date of the Incurrence: (a1) the U.S. dollar equivalent Consolidated Coverage Ratio for the Company and its Restricted Subsidiaries is at least 2.00 to 1.00; and (2) no Default or Event of any loan notes referred Default will have occurred or be continuing or would occur as a consequence of Incurring the Indebtedness or transactions relating to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and such Incurrence.
(b) Section 3.3(a) will not prohibit the aggregate amount Incurrence of Indebtedness incurred pursuant to clause the following Indebtedness: (xii) of this Section 1008(b) in excess of $20,000,000;
(ii1) Indebtedness of the Company or any Incurred pursuant to the Credit Agreement and Guarantees of Restricted Subsidiary under any Inventory Facility;
(iii) Subsidiaries in respect of the Indebtedness Incurred pursuant to a Credit Agreement; provided, however, that the aggregate principal amount of all Indebtedness Incurred by the Company pursuant to this Section 3.3(b)(1) does not exceed $250.0 million at any time outstanding, less the Securities or aggregate principal amount of all Net Cash Proceeds from Asset Dispositions applied to permanently reduce the Exchange Securities and commitments with respect to such Indebtedness of any Guarantor pursuant to this Section 3.3 described under Section 3.7; (2) Guarantees by the Subsidiary Guarantors of Indebtedness Incurred in accordance with this Indenture; provided that in the event such Indebtedness that is being Guaranteed is (a) Senior Subordinated Indebtedness or Guarantor Senior Subordinated Indebtedness, then the related Guarantee shall rank equally in right of payment to the Subsidiary Guarantee or (b) a guarantee Subordinated Obligation or a Guarantor Subordinated Obligation, then the related Guarantee shall be subordinated in right of payment to the Securities or the Exchange Securities;
Subsidiary Guarantee; (iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v3) Indebtedness of the Company owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any other Restricted Subsidiary; provided that any Indebtedness of provided, however, (a) if the Company owing is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities; (b) if a Restricted Subsidiary that Guarantor is the obligor on such Indebtedness and the Company or a Subsidiary Guarantor is not a Guarantor the obligee, such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment Subsidiary Guarantees of such Subsidiary Guarantor; and performance (c)
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being beneficially held by a Person other than the Company or a Restricted Subsidiary of the Company's obligations under the Securities ; and to all Senior Indebtedness; provided, further, that (ii) any disposition, pledge sale or other transfer of any such Indebtedness to a Person (other than a disposition, pledge the Company or transfer to a Restricted Subsidiary) Subsidiary of the Company; shall be deemed deemed, in each case, to be an incurrence constitute the Incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be; (4) Indebtedness represented by (a) the Securities issued on the Issue Date, the Subsidiary Guarantees and the exchange notes and exchange guarantees issued in a registered exchange offer pursuant to the Registration Rights Agreement, (b) any Indebtedness (other obligor not permitted by than the Indebtedness described in clauses (1), (2), (3), (6), (8), (9) and (10) of this clause Section 3.3(b)) outstanding on the Issue Date and (vc) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this Section 3.3(b)(4) or Section 3.3(b)(5) or Incurred pursuant to Section 3.3(a);
; (vi5) Indebtedness of a Restricted Subsidiary owing Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred (a) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreementsotherwise in connection with, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or propertiesin contemplation of, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiarysuch acquisition); provided, however, that at the time such Currency Hedging Restricted Subsidiary is acquired by the Company, the Company would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 3.3(a) after giving effect to the Incurrence of such Indebtedness pursuant to this Section 3.3(b)(5); (6) Indebtedness under Interest Rate Agreements; provided, that in the case of such Interest Rate Agreements do not increase the Indebtedness or other obligations are entered into for bona fide hedging purposes of the Company or any its Restricted Subsidiary outstanding other than Subsidiaries (as a result determined in good faith by the Board of fluctuations in foreign currency exchange rates Directors or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations senior management of the Company or any Restricted Subsidiary outstanding other than Company) and substantially correspond in terms of notional amount, duration, currencies and interest rates, as a result of fluctuations in commodity prices or by reason of feesapplicable, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) to Indebtedness of the Company or its Restricted Subsidiaries Incurred without violation of this Indenture; (7) the Incurrence by the Company or any of its Restricted Subsidiary Subsidiaries of Indebtedness represented by Capitalized Lease Obligations, mortgage financings or purchase money obligations with respect to assets other than Capital Lease Obligations or Purchase Money Obligations Stock or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personalInvestments, movable or immovable, property in each case incurred Incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement improvements of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a such Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 10.0 million at any one timetime outstanding; (xiii) obligations 8) Indebtedness Incurred in respect of letters workers' compensation claims, self-insurance obligations, performance, surety and similar bonds and completion guarantees provided by the Company or a Restricted Subsidiary in the ordinary course of credit business; (9) Indebtedness arising from agreements of the Company or other credit support a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Restricted Subsidiary, provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition; (10) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business provided business, provided, however, that such Indebtedness is extinguished within five Business Days of Incurrence; and (11) in addition to the items referred to in clauses (1) through (10) of this Section 3.3(b), Indebtedness of the Company and its Restricted Subsidiaries in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this Section 3.3(b)(11) and then outstanding, will not exceed $20.0 million at any time outstanding (which may be Indebtedness Incurred under or in respect of the Credit Agreement).
(c) The Company will not Incur any Indebtedness under Section 3.3(b) if the proceeds thereof are used, directly or indirectly, to refinance any Subordinated Obligations of the Company unless such Indebtedness will be subordinated to the Securities to at least the same extent as such Subordinated Obligations. No Subsidiary Guarantor will Incur any indebtedness if the proceeds thereof are used, directly or indirectly, to refinance any Guarantor Subordinated Obligations of such Subsidiary Guarantor unless such Indebtedness will be subordinated to the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee to at least the same extent as such Guarantor Subordinated Obligations. No Subsidiary Guarantor will Incur any Indebtedness if the proceeds thereof are used, directly or indirectly, to refinance any Guarantor Senior Subordinated Indebtedness unless such Refinancing Indebtedness is either Guarantor Senior Subordinated Indebtedness or Guarantor Subordinated Obligations. No Restricted Subsidiary may Incur any Indebtedness if the proceeds are used to refinance Indebtedness of the Company.
(d) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.3: (1) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 3.3(a) or (b), the Company, in its sole discretion, will classify such item of Indebtedness on the date of Incurrence and only be required to include the amount and type of such Indebtedness in one of such clauses; (2) all Indebtedness outstanding on the date of this Indenture under the Credit Agreement shall be deemed initially Incurred on the Issue Date under clause (1) of Section 3.3(b) and not Section 3.3(a) or clause (4) of Section 3.3(b); (3) Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included; (4) if obligations in respect of letters of credit are supported by Incurred pursuant to a Credit Agreement and are being treated as Incurred pursuant to clause (1) of Section 3.3(b) and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included; (5) the principal amount of any Disqualified Stock of the Company or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary that is not a Subsidiary Guarantor, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof; (6) Indebtedness permitted by this Section 3.3 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 3.3 permitting such Indebtedness; and (7) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, accrual of dividends, the accretion of accreted value, the payment of interest in the form of additional Indebtedness and the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.3. The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (ii) the principal amount or liquidation preference thereof, together with any interest thereon that is more than 30 days past due, in the case of any other Indebtedness. 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 calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit support issued or Indebtedness; 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 the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this Section 3.3, the maximum amount of Indebtedness that the Company may Incur pursuant to this Section 3.3 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred 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 Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
(e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 3.3, the Credit Agreement;Company shall be in Default of this Section 3.3).
Appears in 2 contracts
Sources: Indenture (Nebraska Book Co), Indenture (NBC Acquisition Corp)
Limitation on Indebtedness. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Company and any of its Restricted Subsidiaries may Incur Indebtedness (aincluding Acquired Indebtedness) if on the U.S. dollar equivalent date of any loan notes referred such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries is greater than 2.00 to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and 1.00.
(b) Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness (collectively, “Permitted Debt”):
(1) Indebtedness Incurred under any Credit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), and Guarantees in respect of such Indebtedness, up to an aggregate principal amount at the time of Incurrence not exceeding the sum of (i) the greater of (x) $500.0 million and (y) 20.0% of Total Assets at the time of incurrence, plus (ii) an aggregate principal amount of Indebtedness that at the time of Incurrence would not cause, on the date of Incurrence of such Indebtedness and after giving effect thereto, the Consolidated Secured Leverage Ratio to exceed 2.5 to 1.0, plus (iii) in the case of any refinancing, replacement, extension, renewal or restructuring of any Indebtedness permitted under this clause or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar fees) Incurred or payable in connection with such refinancing, and any Refinancing Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000respect thereof;
(ii2) Indebtedness of Guarantees by the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding so long as the Incurrence of such Indebtedness or other than obligations is not prohibited by the terms of this Indenture and, in the case of any Guarantee of Subordinated Indebtedness, such Guarantee is subordinated to the Notes to same degree as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofthe Indebtedness so guaranteed;
(ix3) Indebtedness of the Company owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided, however, that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (a) (a) the Notes (other than any Additional Notes), including any Guarantee thereof, (b) (b) any Indebtedness (other than Indebtedness Incurred pursuant to clauses (1) and (3) above) outstanding on the Issue Date and any Guarantees thereof and (c) (c) Refinancing Indebtedness (including, with respect to the Notes, and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4) or clause (2) or (5) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a);
(5) Indebtedness of (x) the Company or any Restricted Subsidiary Incurred or issued to finance an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged into, amalgamated or consolidated with the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that after giving effect to such acquisition, merger or consolidation, either:
(a) the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 3.2(a);
(b) either the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries would not be lower than it was immediately prior to such acquisition, merger, amalgamation or consolidation; or
(c) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary); provided that, in the case of this clause (d), the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(6) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) Indebtedness (i) represented by Capital Capitalized Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property (in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Companycase, without duplications) in an aggregate outstanding principal amount which, taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (ixi) and then outstanding, does not to exceed the greater of (A) $35,000,000 outstanding at any time; provided that the principal amount 50.0 million and (B) 2.0% of any Indebtedness permitted under this clause (ix) did not in each case Total Assets at the time of incurrence exceed Incurrence or (ii) represented by any Mortgage Facility, Sale and Leaseback Transaction or to finance the Fair Market Value, as determined by the Company in good faith, acquisition of the acquired or constructed asset or improvement so financedHaulers;
(x8) Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, customer guarantees, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other tax or other guarantees or other similar bonds, instruments or obligations arising from agreements and completion guarantees and warranties provided by the Company or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice, (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five (5) Business Days of Incurrence, (iii) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice, (iv) letters of credit, bankers’ acceptances, discontinuing or factoring of receivables or payables for credit management purposes, warehouse receipts, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice, (v) any customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, credit or debit card, purchase card, electronic funds transfer, cash pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business or consistent with past practice, and (vi) Settlement Indebtedness;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary obligations in respect of earn-outs, deferred purchase price closing adjustments, earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of or Person or any Capital Stock of Sytner Group plc a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Company and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the tender offer for all gross proceeds, including the fair market value of such Capital Stock;
non-cash proceeds (xii) Indebtedness of measured at the Sytner Group plc time received and without giving effect to any of its Subsidiaries subsequent changes in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided value), actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause and then outstanding, will not exceed 20.0% of the Company’s Market Capitalization;
(11) Indebtedness of Non-Guarantors in an aggregate amount not to exceed the greater of (x) $50.0 million and 2.0% of Total Assets at the time of incurrence, and any Refinancing Indebtedness in respect thereof, to the extent such Indebtedness would not be considered Permitted Indebtedness if such Non-Guarantor was a Guarantor;
(12) Indebtedness incurred by the Company or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy or discharge the Notes or exercise the Company’s legal defeasance or covenant defeasance, in each case, in accordance with the Indenture;
(13) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (x) 500.0 million and (y) 20.0% of Total Assets;
(15) Indebtedness in respect of any Securitization Facility or any Receivables Facility;
(16) any obligation, or guaranty of any obligation, of the Company or any Restricted Subsidiary to reimburse or indemnify a Person extending credit to customers of the Company or a Restricted Subsidiary incurred in the ordinary course of business provided or consistent with past practice for all or any portion of the amounts payable by such customers to the Person extending such credit; and
(17) Indebtedness Incurred under any Floor Plan Facility.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:
(1) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 3.2(a) and (b), the Company, in its sole discretion, shall classify, and may from time to time reclassify, such item of Indebtedness (or any portion thereof) and only be required to include the amount and type of such Indebtedness in Section 3.2(a) or one of the clauses of Section 3.2(b);
(2) additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in Section 3.2(a) or (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision and any related Liens are permitted to be Incurred at the time of reclassification;
(3) in the case of any Refinancing Indebtedness, when measuring the outstanding amount of such Indebtedness, such amount shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar fees) Incurred or payable in connection with such refinancing;
(4) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included;
(5) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to Section 3.2(a) or any clause of Section 3.2(b) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(6) the principal amount of any Disqualified Stock of the Company or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(7) Indebtedness permitted by this Section 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 3.2 permitting such Indebtedness;
(8) in the event that the obligations Company or a Restricted Subsidiary enters into or increases commitments under such a revolving credit facility, enters into any commitment to Incur or issue Indebtedness, Disqualified Stock or Preferred Stock or commits to Incur any Lien pursuant to clause (31) of the definition of “Permitted Liens,” the incurrence or issuance thereof for all purposes under this Indenture, including without limitation for purposes of calculating the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, or usage of clauses (1) through (17) of Section 3.2(b) (if any) for borrowings and reborrowings thereunder (and including issuance and creation of letters of credit are supported by and bankers’ acceptances thereunder) will, at the Company’s option, either (a) be determined on the date of such revolving credit facility or such entry into or increase in commitments (assuming that the full amount thereof has been borrowed as of such date) or other Indebtedness, Disqualified Stock or Preferred Stock, and, if such Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, test or other provision of this Indenture is satisfied with respect thereto at such time, any borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be permitted under this Section 3.2 irrespective of the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, or other provision of this Indenture at the time of any borrowing or reborrowing (or issuance or creation of letters of credit or other bankers’ acceptances thereunder) (the committed amount permitted to be borrowed or reborrowed (and the issuance and creation of letters of credit support issued and bankers’ acceptances) on a date pursuant to the operation of this clause (a) shall be the “Reserved Indebtedness Amount” as of such date for purposes of the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or provided under the Credit AgreementConsolidated Total Leverage Ratio, as applicable), or (b) be determined on the date such amount is borrowed pursuant to any such facility or increased commitment, and in each case, the Company may revoke such determination at any time and from time to time;
(9) in the event that the Company or a Restricted Subsidiary (x) incurs Indebtedness to finance an acquisition or (y) assumes Indebtedness of Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture, the date of determination of the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, shall, at the option of the Company, be (a) the date that a definitive agreement for such acquisition is entered into and the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, shall be calculated giving pro forma effect to such acquisition and any actions or transactions related thereto (including acquisitions, Investments, the Incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock and the use of proceeds thereof) consistent with the definition of the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, and, for the avoidance of doubt, (A) if any such ratios are exceeded as a result of fluctuations in such ratio (including due to fluctuations in the Consolidated EBITDA of the Company or the target company) at or prior to the consummation of the relevant acquisition, such ratios will not be d
Appears in 2 contracts
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Material Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that (x) the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Material Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00 and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding clause (x) by Restricted Subsidiaries that are not Loan Parties shall not exceed the greater of $300.0 million and 7.0% of Consolidated Tangible Assets at any time outstanding.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred Incurred pursuant to clause any Credit Facility (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and including, but not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturitylimited to, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other credit support than pursuant to any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, either (I) in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $3,200.0 million, plus (B) the amount equal to the greater of (x) $1,300.0 million and (y) an amount equal to (1) the Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Restricted Subsidiaries and then outstanding pursuant to subsection 7.1(b)(ix), plus (C) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing or (II) in an unlimited amount, if on the date of the Incurrence of such Indebtedness (other than any such Refinancing Indebtedness), after giving effect to such Incurrence (or, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness (such committed amount, a “Ratio Tested Committed Amount”), in which case such Ratio Tested Committed Amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause) the Consolidated Secured Leverage Ratio would be equal to or less than 4.75:1.00; and (in the case of this subclause (II)) any Refinancing Indebtedness with respect to any such Indebtedness (or unutilized commitment);
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Borrower or any Restricted Subsidiary to any Restricted Subsidiary; provided that, in the case of this subsection 7.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the Company issuer thereof not permitted by this subsection 7.1(b)(ii);
(iii) Indebtedness represented by the Senior Notes issued on the Restatement Effective Date (and its Restricted Subsidiaries any Senior Notes issued in respect thereof or in exchange therefor), any Indebtedness (other than the ordinary course Indebtedness under the Senior Credit Facilities described in subsection 7.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Restatement Effective Date and any Refinancing Indebtedness Incurred in respect of business any Indebtedness (or unutilized commitments) described in this subsection 7.1(b)(iii) or subsection 7.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the obligations under aggregate principal amount of such letters Purchase Money Obligations Incurred to finance the acquisition of credit are supported by letters Capital Stock of credit or other credit support issued or provided under any Person at any time outstanding pursuant to this clause (iv) shall not exceed an amount equal to the Credit Agreementgreater of $250.0 million and 5.4% of Consolidated Tangible Assets;
Appears in 2 contracts
Sources: Credit Agreement (US Foods Holding Corp.), Term Loan Credit Agreement (US Foods Holding Corp.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, create, issue, incur, assume, guarantee assume or otherwise in suffer to exist any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) . Notwithstanding the foregoing, the Company and, to the extent specifically limitations set forth below, in the Restricted Subsidiaries may incur each and all immediately preceding sentence shall not apply to any of the following (collectively, the "Permitted Indebtedness"):following:
(ia) Indebtedness of the Company arising under the Company's Credit Agreement Documents (including any refinancing Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(as defined belowb) of such Indebtedness) Indebtedness under the ABL Credit Documents and any Refinancing Indebtedness thereof, in an aggregate principal amount at any one time outstanding not to exceed the sum of (i) $920,000,000 300,000,000 plus (ii) the principal amount of “Incremental Facilities” (as defined in any case under the ABL Credit Agreement) measured at the time of incurrence pursuant to the ABL Credit Agreement or as in respect of letters of credit under effect on the Credit Agreement, and guarantees by Guarantors Closing Date plus (iii) solely in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent case of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) such Refinancing Indebtedness, the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000Refinancing Increased Amount with respect thereto;
(iic) [reserved];
(d) subject to compliance with Section 10.5, Indebtedness of the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant owed to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company Borrower or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that all such Indebtedness of any Credit Party owed to any Person that is not a Credit Party shall be (x) evidenced by the Intercompany Subordinated Note (provided that any Person becoming a Restricted Subsidiary after the Closing Date may enter into the Intercompany Subordinated Note within the time period set forth in Section 9.11) or (y) otherwise be subject to subordination terms substantially identical to the subordination terms set forth in the Intercompany Subordinated Note or otherwise reasonably acceptable to the Administrative Agent;
(e) subject to compliance with Section 10.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Company owing Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (x) if the Indebtedness being guaranteed under this Section 10.1(e) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of the Obligations on terms (taken as a whole) at least as favorable to the Lenders as those contained in the subordination of such Indebtedness and (y) a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to Credit Party may not, by virtue of this Indenture and is unsecured and subordinated in right of payment from and after Section 10.1(e), guarantee Indebtedness that such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations Restricted Subsidiary could not otherwise incur under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Section 10.1;
(vif) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer respect of any such Indebtedness to a Person (other than a dispositionbankers’ acceptance, pledge bank guarantees, letter of credit, warehouse receipt or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor similar facilities entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness of the Company or any Restricted Subsidiary as long as such with respect to reimbursement-type obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, regarding workers compensation claims and similar obligations);
(bg) under any Currency Hedging Agreements, relating to Guarantee Obligations (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business in respect of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company (or any Restricted Subsidiary outstanding to) suppliers, customers, franchisees, lessors and licensees, (ii) otherwise constituting Investments permitted by Section 10.5 (other than as a result Investments permitted by Section 10.5(l) by reference to Section 10.1 and Section 10.5(q)); provided that this clause (ii) shall not be construed to limit the requirements of fluctuations in foreign currency exchange rates or by reason of feesSection 10.1(d) and (e), indemnities and compensation payable under such Currency Hedging Agreements or (ciii) under any Commodity Price Protection Agreements which do not increase contemplated by the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofPlan;
(ixh) Indebtedness of the Company or any Restricted Subsidiary represented by (including Indebtedness arising under Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness Leases) incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of to finance the purchase price or price, cost of construction design, acquisition, construction, repair, restoration, replacement, expansion, installation or improvement of property used fixed or capital assets or otherwise in the business respect of Capital Expenditures, so long as such Indebtedness is incurred concurrently with or within 270 days of the Companyacquisition, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Valueconstruction, as determined by the Company in good faithrepair, of the acquired or constructed asset restoration, replacement, expansion, installation or improvement so financed;
(x) obligations arising from agreements by the Company of such fixed or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs capital assets or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all incurrence of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc Expenditure, and any of its Subsidiaries Refinancing Indebtedness thereof, in an aggregate principal amount not to exceed (i) the greater of (x) $90,000,000 160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance plus the principal amount of Capital Leases outstanding on the Closing Date, in each case at any one timetime outstanding plus (ii) solely in the case of any such Refinancing Indebtedness, the Refinancing Increased Amount with respect thereto;
(i) Indebtedness permitted to remain outstanding under the Plan, and to the extent such Indebtedness exceeds $5,000,000, set forth on Schedule 10.1 and any Refinancing Indebtedness thereof; provided that in the case of any Refinancing Indebtedness of any such Indebtedness, each obligor of such Refinancing Indebtedness is an obligor of such Indebtedness;
(j) Indebtedness in respect of Hedging Agreements; provided that such Hedging Agreements are not entered into for speculative purposes (as determined by the Borrower in good faith);
(i) Permitted Other Debt assumed or incurred for any purpose, including to finance a Permitted Acquisition, other permitted Investments or Capital Expenditures; provided that (A) if such Indebtedness is incurred or assumed by a Restricted Subsidiary that is not a Credit Party, such Indebtedness is not guaranteed in any respect by the Borrower or any other Guarantor except as permitted under Section 10.5, (B) the aggregate principal amount of Indebtedness incurred or assumed under this Section 10.1(k)(i) shall not exceed (1) the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance plus (2) additional amounts if, on a Pro Forma Basis after giving effect to the incurrence or assumption of such Indebtedness and the application of proceeds thereof and, if applicable, the Permitted Acquisition, permitted Investment or Capital Expenditure, the Consolidated Total Net Leverage Ratio is not greater than 3.30 to 1.00 or, to the extent incurred or assumed in connection with a Permitted Acquisition or similar Investment, the Consolidated Total Net Leverage Ratio (on a Pro Forma Basis for such transaction and the incurrence or assumption of such Indebtedness) is not greater than (I) 3.30 to 1.00 or (II) the Consolidated Total Net Leverage Ratio immediately prior to such Permitted Acquisition or similar Investment and (C) if such Permitted Other Debt incurred (and for the avoidance of doubt, not “assumed”) pursuant to this clause (k)(i) constitutes a Permitted Other Loan that ranks pari passu with the Initial Term Loans as to right of payment and security with respect to the Collateral, the Initial Term Loans shall be subject to the adjustment (if applicable) set forth in the proviso to Section 2.14(d)(iv) as if such Permitted Other Loan were an Incremental Term Loan incurred hereunder and (ii) any Refinancing Indebtedness in respect of the Indebtedness under clause (i) above; provided that Indebtedness incurred or assumed by Restricted Subsidiaries that are not Subsidiary Guarantors under this Section 10.1(k), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Section 10.1(ee), shall not exceed the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance, in each case at any time outstanding;
(l) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations not in connection with money borrowed, in each case provided in the ordinary course of business or consistent with past practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business (including in respect of construction or restoration activities) or consistent with past practice;
(m) additional Indebtedness; provided that the aggregate amount of Indebtedness incurred or issued pursuant to this Section 10.1(m) shall not exceed the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance, in each case at any time outstanding;
(n) Cash Management Obligations and other Indebtedness in respect of overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements in the ordinary course of business;
(i) Indebtedness incurred in the ordinary course of business 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 and (ii) Indebtedness in respect of intercompany obligations of the Borrower or any Restricted Subsidiary with the Borrower or any Restricted Subsidiary in respect of accounts payable incurred in connection with goods sold or services rendered in the ordinary course of business and not in connection with the borrowing of money;
(p) Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with a Permitted Change of Control, Permitted Acquisitions, other Investments and the Disposition of any business, assets or Stock or Stock Equivalents permitted hereunder;
(q) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) financing of insurance premiums or (ii) take or pay obligations contained in supply agreements, in each case arising in the ordinary course of business;
(r) Indebtedness representing deferred compensation, or similar arrangement, to employees, consultants or independent contractors of the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business;
(s) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to present or former officer, manager, consultant, director or employee (or their respective wealth management vehicles, spouses, former spouses, successors, executors, administrators, heirs, legatees, distributees, estates or immediate family members) to finance the purchase or redemption of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof) permitted by Section 10.6(b);
(t) Indebtedness consisting of obligations of the Borrower and the Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions and Permitted Acquisitions, any other Investment permitted hereunder and any Permitted Change of Control;
(u) Indebtedness in respect of (i) Permitted Receivables Financings owed by a Receivables Entity or Qualified Securitization Financings owed by a Securitization Subsidiary and (ii) accounts receivable factoring facilities in the ordinary course of business; provided that the aggregate amount of Receivables Indebtedness pursuant to this clause (u) shall not exceed $160,000,000 at any time outstanding;
(v) Indebtedness in respect of (i) Permitted Other Debt issued or incurred to the extent that the Net Cash Proceeds therefrom are applied to the prepayment of the Term Loans in the manner set forth in Section 5.2(a)(iii)(A); (xiiiii) other Permitted Other Debt (such Indebtedness incurred pursuant to this clause (ii), “Incremental Equivalent Debt”) in an aggregate principal amount not to exceed the then-available Maximum Incremental Facilities Amount; provided that (x) if such Permitted Other Debt incurred pursuant to this clause (ii) is a Permitted Other Loan that ranks pari passu with the Initial Term Loans as to right of payment and security, the Initial Term Loans shall be subject to the adjustment (if applicable) set forth in the proviso to Section 2.14(d)(iv) as if such Permitted Other Loan were an Incremental Term Loan incurred hereunder and (y) if such Permitted Other Debt incurred pursuant to this clause (ii) is unsecured or secured on a junior basis to the Obligations, such Permitted Other Debt shall not have a maturity date earlier than 91 days after the Initial Term Loan Maturity Date; and (iii) any Refinancing Indebtedness in respect of Indebtedness incurred pursuant to clauses (i) and (ii) above;
(i) Indebtedness in respect of Permitted Debt Exchange Instruments incurred pursuant to a Permitted Debt Exchange in accordance with Section 2.17 and (ii) any Refinancing Indebtedness thereof;
(x) Indebtedness in an amount not to exceed the Available Equity Amount;
(y) Indebtedness of any Minority Investments or Indebtedness incurred on behalf thereof or representing guarantees of such Indebtedness of any Minority Investment, in an amount not to exceed the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance, in each case at any time outstanding;
(z) intercompany Indebtedness among the Borrower and its Subsidiaries constituting any part of any Permitted Reorganization;
(aa) to the extent constituting Indebtedness, customer deposits and advance payments (including progress payments) received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business;
(i) Indebtedness of the Borrower or any Restricted Subsidiary supported by a letter of credit, in a principal amount not in excess of the stated amount of such letter of credit so long as such letter of credit is otherwise permitted to be incurred pursuant to this Section 10.1 or (ii) obligations in respect of letters of credit support, guarantees or similar obligations issued, made or incurred for the benefit of the Borrower or any Subsidiary of the Borrower in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other credit support provided than the United States;
(cc) Indebtedness owing to the seller of any business or assets permitted to be acquired by the Company and its Borrower or any Restricted Subsidiaries in the ordinary course of business Subsidiary under this Agreement; provided that the aggregate amount of Indebtedness permitted under this clause (cc) shall not exceed the greater of $160,000,000 and 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at any time;
(dd) obligations in respect of Disqualified Stock in an amount not to exceed the greater of $25,000,000 and 3% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at any time;
(ee) Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (ee), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Section 10.1(k), shall not exceed the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence or issuance, in each case at any time outstanding; and
(ff) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (ee) above. For the avoidance of doubt, any Indebtedness permitted to be incurred under any clause of this Section 10.1 may be used to modify, refinance, refund, renew, replace, exchange or extend any outstanding Indebtedness, including any such letters Indebtedness incurred under any other clause of credit are supported by letters this Section 10.1 and any such Indebtedness with respect to which the incurrence of credit Refinancing Indebtedness is expressly permitted under this Section 10.1, in each case, subject to the restrictions set forth in Section 10.7. Accrual of interest or other credit support issued dividends, the accretion of accreted value, the accretion or provided under amortization of original issue discount and the Credit Agreement;payment of interest or dividends in the form of additional Indebtedness or Disqualified Stock will not be deeme
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Avaya Holdings Corp.), Term Loan Credit Agreement (Avaya Holdings Corp.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will notIndebtedness of any Loan Party pursuant to any Loan Document (including Replacement Term Loans);
(b) Indebtedness of the Borrower to any Intermediate Holdco, the Parent or any Subsidiary, and will not cause Indebtedness of any Guarantor to the Borrower or permit any other Guarantor;
(i) Capital Lease Obligations of the Borrower and its Class I Restricted Subsidiaries; (ii) obligations under any leases of the Borrower and any of its Restricted Subsidiaries toin existence on the Restatement Closing Date and characterized on the Restatement Closing Date as operating leases that are recharacterized as Capital Lease Obligations after the Restatement Closing Date; (iii) obligations under any ASC ▇▇▇-▇▇-▇▇ Capital Leases; (iv) obligations under any Digital Cinema Equipment Lease with DCIP; and (v) obligations secured by Liens permitted by Section 7.3(g);
(d) Indebtedness of the Borrower and the Class I Restricted Subsidiaries outstanding on the Restatement Closing Date or arising under agreements entered into prior to the Restatement Closing Date and in each case listed on Schedule 7.2(d) (other than the 5.125% Senior Notes and Capital Lease Obligations) and any refinancings, createrefundings, issuerenewals or extensions thereof (without any increase in the principal amount thereof (other than any increase not exceeding the amount of all accrued and unpaid interest on the Indebtedness being refinanced, incurand any fees, assumepremium, guarantee if any, and financing costs relating to such refinancing) or any shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor;
(f) [Reserved];
(g) unsecured Indebtedness of the Parent and any Intermediate Holdco so long as (X) immediately prior to and after giving effect to the incurrence of such Indebtedness, the Parent and the Borrower are in compliance with Section 7.1, (Y) the maturity of any principal amount thereof shall not be earlier than the date which is 90 days after Latest Maturity Date and (Z) none of the Borrower or any of its Restricted Subsidiaries has any Guarantee Obligation with respect to such Indebtedness;
(h) (i) (A) Non-Recourse Debt of the Borrower or any Class I Restricted Subsidiary secured by fee-owned real property of the Borrower or such Class I Restricted Subsidiary that does not constitute Mortgaged Property and (B) upon transfer of any fee-owned property of the type described in the foregoing clause (A) to an Unrestricted Subsidiary, Non-Recourse Debt of such Unrestricted Subsidiary secured by such property and (ii) Indebtedness in respect of Sale and Leaseback Transactions permitted by Section 7.5; provided that the principal amount of such Non-Recourse Debt pursuant to clause (i)(A) of this paragraph shall not exceed an amount equal to $125,000,000 at any time outstanding;
(i) Indebtedness of any Unrestricted Subsidiary or Class II Restricted Subsidiary consisting entirely of Non-Recourse Debt; provided that, if any such Indebtedness ceases to be Non-Recourse Debt of such Unrestricted Subsidiary or Class II Restricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Class I Restricted Subsidiary of the Borrower that was not permitted by this Section 7.2(i);
(j) Guarantee Obligations of Unrestricted Subsidiaries in respect of the obligations of other Unrestricted Subsidiaries and Class II Restricted Subsidiaries not otherwise in prohibited hereunder, and Guarantee Obligations of Class II Restricted Subsidiaries of obligations of other Class II Restricted Subsidiaries not otherwise prohibited hereunder;
(k) intercompany Indebtedness of any manner become directly Class II Restricted Subsidiary or indirectly liable for Unrestricted Subsidiary to the payment of Borrower or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness Class I Restricted Subsidiary outstanding on the date hereof and listed on Schedule 7.2(k) (including any Acquired Indebtednessaccrued but unpaid interest thereon accruing subsequent to the Restatement Closing Date) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof other than the amount of any accrued interest) or shortening of the maturity of any principal amount thereof (which shall not prohibit any prepayments made with cash), unless such which Indebtedness is incurred evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent which has been delivered to the Administrative Agent;
(l) other Indebtedness of an Unrestricted Subsidiary or Class II Restricted Subsidiary to the Borrower or any Class I Restricted Subsidiary permitted by Section 7.8(h);
(m) Indebtedness of any Person that is acquired by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of its Restricted Subsidiaries and becomes a Restricted Subsidiary or is merged with or into the Borrower or any of its Restricted Subsidiaries after the Restatement Closing Date and Indebtedness secured by an asset acquired by the Borrower or any of its Restricted Subsidiaries after the Restatement Closing Date and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
refinancings, renewals, extensions, refundings and replacements thereof (b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in refinancing, renewal, extension, refunding or replacement shall not (i) increase the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstandingother than by the amount of any undrawn commitment existing prior to such refinancing, renewal, extension, refunding or replacement and any accrued interest, (bii) shorten the maturity of any principal amount of such Indebtedness, (iii) change the obligor under such Indebtedness or (iv) expand the Property securing such Indebtedness); provided that (A) such original Indebtedness was in existence on the date such Person became a Restricted Subsidiary or merged with or into the Borrower or any Currency Hedging Agreementsof its Restricted Subsidiaries or on the date that such asset was acquired, relating as the case may be, (B) such original Indebtedness was not created in contemplation of such Person becoming a Restricted Subsidiary or merging with or into the Borrower or any of its Restricted Subsidiaries or such asset being acquired, as the case may be, (C) immediately after giving effect to the acquisition of such Person or asset by the Borrower or any of its Restricted Subsidiaries, as the case may be, no Default or Event of Default shall have occurred and be continuing and (iD) after giving pro forma effect to such acquisition, the Consolidated Net Senior Secured Leverage Ratio shall not be greater than 3.0 to 1.0;
(n) Indebtedness of the Company Borrower or any Class II Restricted Subsidiary under the Peso Subfacility and/or under a loan facility denominated in Pesos providing for loans made under documentation other than the Loan Documents (ii“Third-Party Peso Loans”) obligations in an aggregate maximum principal amount as of any Peso Borrowing Date and after giving effect to purchase or sell assets or properties, in each case, incurred in the ordinary course of business borrowings and any repayments to be made on such date not to exceed the Peso equivalent (calculated as of the Company Peso Borrowing Calculation Date) of $25,000,000 and guarantees thereof by the Parent, any Intermediate Holdco, the Borrower or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal aggregate amount of any Indebtedness permitted available under this clause (ix) did the Peso Subfacility, Third-Party Peso Loans and the Revolving Credit Commitments shall not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedTotal Revolving Credit Commitments;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 2 contracts
Sources: Credit Agreement (Cinemark Holdings, Inc.), Credit Agreement (Cinemark Usa Inc /Tx)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, create, issue, incur, assume, guarantee assume or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents (including pursuant to Sections 2.16 and 2.17 and any Acquired Permitted Refinancing Debt incurred to Refinance such Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.;
(b) Notwithstanding Indebtedness (including Guarantee Obligations thereunder) in respect of the foregoingSenior Interim Loans, the Company andSenior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Refinance such Indebtedness;
(c) Indebtedness of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company Borrower or another Restricted any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is made pursuant to not a Guarantor shall (x) be evidenced by the Intercompany Note or (y) otherwise be outstanding on the Closing Date so long as such Indebtedness is evidenced by an intercompany note substantially in the form attached as Annex A of Exhibit L or otherwise subject to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer subordination terms substantially identical to the Company or a Restricted Subsidiary) shall be deemed subordination terms set forth in Exhibit L, in each case, to be an incurrence of such Indebtedness by the obligor not extent permitted by this clause Requirements of Law and not giving rise to material adverse tax consequences, (vi)ii) any Subsidiary that is not a Guarantor owing to any other Subsidiary that is not a Guarantor and (iii) to the extent permitted by Section 10.5, any Subsidiary that is not a Guarantor owing to the Borrower or any Guarantor;
(viid) guarantees Indebtedness in respect of any Restricted Subsidiary made in accordance with the provisions bankers’ acceptance, bank guarantees, letter of Section 1013;
(viii) obligations of the Company credit, warehouse receipt or any Guarantor similar facilities entered into in the ordinary course of business (aincluding in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims);
(e) pursuant subject to Interest Rate Agreements designed to protect the Company or any compliance with Section 10.5, Guarantee Obligations incurred by (i) Restricted Subsidiary against fluctuations in interest rates Subsidiaries in respect of Indebtedness of the Company Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 10.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 10.1) and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 10.1(e) is subordinated to the Obligations, such Guarantee Obligations 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 and (B) no guarantee by any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such any Permitted Additional Debt (or Indebtedness then outstanding, under clause (b) under any Currency Hedging Agreements, relating to above) shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Obligations substantially on the terms set forth in the Guarantee;
(f) Guarantee Obligations (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 10.5(d), (g), (h), (i), (q), (r) and (s);
(g) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of the Company acquisition, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, or improvement of such fixed or capital assets; (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Closing Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each of the foregoing subclauses (i) and (ii), the Borrower shall be in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenant, as such covenant is recomputed as at the last day of the most recently ended Test Period as if such incurrence had occurred on the first day of such Test Period); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the date hereof listed on Schedule 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(j) (i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiaries) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for after the purpose Closing Date as the result of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any timea Permitted Acquisition; provided that the principal amount of any that:
(A) such Indebtedness permitted under this clause (ix) did not in each case existed at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or such Person became a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligationsat the time such assets were acquired and, in each case, incurred was not created in connection anticipation thereof,
(B) 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 a merger with such Person or any of its Subsidiaries),
(C) (1) the Stock of such Person is pledged to the Collateral Agent to the extent required under Section 9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and a joinder to the Intercompany Note, in each case to the extent required under Section 9.11; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 10.2, equally and ratably secure such Indebtedness assumed with the acquisition or disposition Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause (C) shall not apply to any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc type that could have been incurred under Section 10.1(g), and
(D) after giving effect to the assumption of any such Indebtedness, to such acquisition and to any related Pro Forma Adjustment, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant, as such covenant is recomputed as at the last day of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit AgreementTest Period;
Appears in 2 contracts
Sources: Credit Agreement (Samson Resources Corp), Credit Agreement (Samson Holdings, Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, to create, incur, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurliable, contingently or otherwise suffer to exist any Indebtedness, except:
(collectivelya) Indebtedness arising under the Credit Documents, "incur"), including pursuant to Sections 2.14 and 2.15 hereof and any Indebtedness (including any Acquired Credit Agreement Refinancing Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Indebtedness of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is made pursuant to an intercompany note in not a Subsidiary Guarantor shall (x) be evidenced by the form attached Intercompany Note or (y) otherwise be outstanding on the Closing Date so long as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness is evidenced by the Intercompany Note or otherwise subject to a Person (other than a disposition, pledge or transfer subordination terms substantially identical to the Company subordination terms set forth in Exhibit N within 60 days of the Closing Date or a Restricted Subsidiary) such later date as the Administrative Agent shall be deemed reasonably agree, in each case, to be an incurrence of such Indebtedness by the obligor not extent permitted by this clause Applicable Law and not giving rise to material adverse tax consequences, (vi)ii) any Restricted Subsidiary that is not a Subsidiary Guarantor owing to any other Restricted Subsidiary that is not a Subsidiary Guarantor and (iii) to the extent permitted by Section 10.5, any Restricted Subsidiary that is not a Subsidiary Guarantor owing to the Borrower or any Subsidiary Guarantor;
(viii) guarantees Indebtedness in respect of any Restricted Subsidiary made in accordance with the provisions bankers’ acceptance, bank guarantees, letter of Section 1013;
(viii) obligations of the Company credit, warehouse receipt or any Guarantor similar facilities entered into in the ordinary course of business (aincluding in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims) pursuant and (ii) Indebtedness supported by Letters of Credit in an amount not to Interest Rate Agreements designed to protect exceed the Company or Stated Amount of such Letters of Credit;
(d) Guarantee Obligations incurred by (i) any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, that is permitted to be incurred under this Agreement;
(be) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, Guarantee Obligations incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofof obligations to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners;
(ixi) Indebtedness the proceeds of which are used to finance the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personalacquisition, movable or immovablelease, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction construction, repair, replacement, expansion or improvement of property used fixed or capital assets or otherwise issued or incurred in the business respect of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any timeCapital Expenditures; provided that (A) such Indebtedness is issued or incurred concurrently with or within 270 days after the principal amount applicable acquisition, lease, construction, repair, replacement, expansion or improvement and (B) such Indebtedness is not issued or incurred to acquire Capital Stock of any Person and (ii) any Permitted Refinancing Indebtedness permitted issued or incurred to Refinance such Indebtedness; provided that, after giving effect to the incurrence or issuance of any such Indebtedness, the Borrower shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Indebtedness, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period;
(g) (i) Indebtedness arising under this clause Capitalized Leases, other than Capitalized Leases in effect on the Closing Date (ixand set forth on Schedule 10.1) did not and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that, after giving effect to the incurrence or issuance of any such Indebtedness, the Borrower shall be in each case compliance on a Pro Forma Basis with the covenants set forth in Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Indebtedness, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period; 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 Indebtedness outstanding under this clause (g) shall not exceed the Fair Market Value, greater of (x) $10,000,000 and (y) 0.3% of Consolidated Total Assets (measured as determined by the Company in good faith, of the acquired date such Indebtedness is issued or constructed asset incurred based upon the Section 9.1 Financials most recently delivered on or improvement so financedprior to such date of incurrence);
(xh) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection Closing Date Indebtedness and any Permitted Refinancing Indebtedness with the acquisition or disposition of any business or assets of a Restricted Subsidiaryrespect thereto;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries Hedging Agreements incurred in the ordinary course of business provided and, at the time entered into, not for speculative purposes;
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiaries) or Indebtedness attaching to assets that are acquired by the obligations Borrower or any Restricted Subsidiary, in each case after the Closing Date as the result of a Permitted Acquisition or similar Investments permitted under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;Section 10.5; provided, that:
Appears in 2 contracts
Sources: Third Amendment, Extension and Incremental Assumption Agreement (LPL Financial Holdings Inc.), Credit Agreement (LPL Investment Holdings Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, create, issue, incur, assume, guarantee assume or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents (including pursuant to Sections 2.16 and 2.17 and any Acquired Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.;
(b) Notwithstanding Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Secured Second Lien Term Loan Facility (and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 125,000,000 and (b) the aggregate amount of any Permitted Refinancing Indebtedness issued or incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000Refinance such Indebtedness;
(iic) Indebtedness of (i) the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company Borrower or another Restricted any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is made pursuant to not a Guarantor shall (x) be evidenced by the Intercompany Note or (y) otherwise be outstanding on the Closing Date so long as such Indebtedness is evidenced by an intercompany note substantially in the form attached as Annex A of Exhibit H or otherwise subject to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer subordination terms substantially identical to the Company or a Restricted Subsidiary) shall be deemed subordination terms set forth in Exhibit H, in each case, to be an incurrence of such Indebtedness by the obligor not extent permitted by this clause Requirements of Law and not giving rise to material adverse tax consequences, (vi)ii) any Subsidiary that is not a Guarantor owing to any other Subsidiary that is not a Guarantor and (iii) to the extent permitted by Section 10.5, any Subsidiary that is not a Guarantor owing to the Borrower or any Guarantor;
(viid) guarantees Indebtedness in respect of any Restricted Subsidiary made in accordance with the provisions bankers’ acceptance, bank guarantees, letter of Section 1013;
(viii) obligations of the Company credit, warehouse receipt or any Guarantor similar facilities entered into in the ordinary course of business or consistent with past practice or industry practice (aincluding in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims);
(e) pursuant subject to Interest Rate Agreements designed to protect the Company or any compliance with Section 10.5, Guarantee Obligations incurred by (i) Restricted Subsidiary against fluctuations in interest rates Subsidiaries in respect of Indebtedness of the Company Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 10.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 10.1) and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 10.1(e) is subordinated to the Obligations, such Guarantee Obligations 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 and (B) no guarantee by any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such any Permitted Additional Debt (or Indebtedness then outstanding, under clause (b) under any Currency Hedging Agreements, relating to above) shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Obligations substantially on the terms set forth in the Guarantee;
(f) Guarantee Obligations (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business in respect of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company (or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates to) suppliers, customers, franchisees, lessors, licensees or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements sublicensees or (cii) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or otherwise constituting Investments permitted by reason of feesSections 10.5(d), indemnities (g), (h), (i), (q), (r) and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof(s);
(ixg) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred prior to or within 270 days following the acquisition, construction, lease, repair, replacement, expansion or improvement of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of assets (real or personal, movable and whether through the direct purchase of property or immovablethe Equity Interests of a Person owning such property) to finance the acquisition, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction construction, lease, repair, replacement expansion, or improvement of property used such assets; (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Closing Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the business case of each of the Companyforegoing subclauses (i) and (ii), the Borrower shall be in an aggregate principal amount pursuant Pro Forma Compliance immediately after giving effect to this clause the incurrence of such Indebtedness (ixand the use of proceeds thereof); and (iii) not any Permitted Refinancing Indebtedness issued or incurred to exceed $35,000,000 Refinance any such Indebtedness;
(h) Indebtedness outstanding at any time; on the date hereof (provided that the principal amount of any Indebtedness that is in excess of $1,000,000 individually shall only be permitted under this clause (ixh) did not to the extent such Indebtedness is set forth on Schedule 10.1) and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiaries) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or such Person became a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligationsat the time such assets were acquired and, in each case, incurred was not created in connection anticipation thereof,
(B) 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 a merger with such Person or any of its Subsidiaries),
(C) (1) the Equity Interests of such Person is pledged to the Collateral Agent to the extent required under Section 9.11(b) and (2) such Person executes a supplement to each of the Guarantee and the Security Agreements and a joinder to the Intercompany Note, in each case to the extent required under Section 9.11; provided that the assets covered by such pledges and security interests may, at the option of the Borrower, to the extent permitted by Section 10.2, equally and ratably secure such Indebtedness assumed with the acquisition or disposition Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred under Section 10.1(f), and
(D) immediately after giving effect to the assumption of any business or assets of a Restricted Subsidiarysuch Indebtedness, such acquisition and any related transactions, the Borrower shall be in Pro Forma Compliance;
(xiii) loan notesany Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(k) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Equity Interests of such Person acquired in such Permitted Acquisition, if any, issued is pledged to a holder the Collateral Agent to the extent required under Section 9.11(b) and (2) such Person executes supplements to each of the shares of Capital Stock of Sytner Group plc Guarantee and the applicable Security Agreements and a joinder to the Intercompany Note, in connection with each case to the tender offer for all of such Capital Stockextent required under Section 9.11;
(xiiB) Indebtedness immediately after giving effect to the incurrence of the Sytner Group plc any such Indebtedness, such acquisition and any related transactions, the Borrower shall be in Pro Forma Compliance;
(C) the maturity of its Subsidiaries such Indebtedness is not earlier than, and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon any event of default) is required prior to, 91 days after the Latest Maturity Date of any Facility hereunder (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company Borrower or any Subsidiary Guarantor except to the extent (1) such guarantee is permitted under Section 10.5 and its Restricted Subsidiaries (2) that after giving effect to the incurrence of any such Indebtedness, such acquisition and any related transactions, the Borrower shall be in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit AgreementPro Forma Compliance;
Appears in 2 contracts
Sources: Credit Agreement (Athlon Energy Inc.), Credit Agreement (Athlon Energy Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, to create, incur, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurliable, contingently or otherwise suffer to exist any Indebtedness, except:
(collectivelya) Indebtedness arising under (i) the Credit Documents, "incur"), including pursuant to Sections 2.14 and 2.15 hereof and any Credit Agreement Refinancing Indebtedness and (including ii) the Senior Notes Documents in an aggregate outstanding principal amount under this clause (ii) not to exceed $1,300,000,000 and any Acquired Indebtedness), unless such Permitted Refinancing Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.respect thereof;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Indebtedness of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is made pursuant to an intercompany note in not a Subsidiary Guarantor shall (x) be evidenced by the form attached Intercompany Note or (y) otherwise be outstanding on the Effective Date so long as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness is evidenced by the Intercompany Note or otherwise subject to a Person (other than a disposition, pledge or transfer subordination terms substantially identical to the Company subordination terms set forth in Exhibit N within 60 days of the Effective Date or a Restricted Subsidiary) such later date as the Administrative Agent shall be deemed reasonably agree, in each case, to be an incurrence of such Indebtedness by the obligor not extent permitted by this clause Applicable Law and not giving rise to material adverse tax consequences, (vi)ii) any Restricted Subsidiary that is not a Subsidiary Guarantor owing to any other Restricted Subsidiary that is not a Subsidiary Guarantor and (iii) to the extent permitted by Section 10.5, any Restricted Subsidiary that is not a Subsidiary Guarantor owing to the Borrower or any Subsidiary Guarantor;
(viii) guarantees Indebtedness in respect of any Restricted Subsidiary made in accordance with the provisions bankers’ acceptance, bank guarantees, letter of Section 1013;
(viii) obligations of the Company credit, warehouse receipt or any Guarantor similar facilities entered into in the ordinary course of business (aincluding in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims) pursuant and (ii) Indebtedness supported by Letters of Credit in an amount not to Interest Rate Agreements designed to protect exceed the Company or Stated Amount of such Letters of Credit;
(d) Guarantee Obligations incurred by (i) any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, that is permitted to be incurred under this Agreement;
(be) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, Guarantee Obligations incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofof obligations to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners;
(ixi) Indebtedness the proceeds of which are used to finance the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personalacquisition, movable or immovablelease, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction construction, repair, replacement, expansion or improvement of property used fixed or capital assets or otherwise issued or incurred in the business respect of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any timeCapital Expenditures; provided that (A) such Indebtedness is issued or incurred concurrently with or within 270 days after the principal amount applicable acquisition, lease, construction, repair, replacement, expansion or improvement and (B) such Indebtedness is not issued or incurred to acquire Capital Stock of any Person and (ii) any Permitted Refinancing Indebtedness permitted issued or incurred to Refinance such Indebtedness; provided that, after giving effect to the incurrence or issuance of any such Indebtedness, the Borrower shall be in compliance on a Pro Forma Basis with the covenants set forth in Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Indebtedness, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period;
(g) (i) Indebtedness arising under this clause Capitalized Leases, other than Capitalized Leases in effect on the Effective Date (ixand set forth on Schedule 10.1) did not and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that, after giving effect to the incurrence or issuance of any such Indebtedness, the Borrower shall be in each case compliance on a Pro Forma Basis with the covenants set forth in Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Indebtedness, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Test Period; 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 Indebtedness outstanding under this clause (g) shall not exceed the Fair Market Value, greater of (x) $10,000,000 and (y) 0.3% of Consolidated Total Assets (measured as determined by the Company in good faith, of the acquired date such Indebtedness is issued or constructed asset incurred based upon the Section 9.1 Financials most recently delivered on or improvement so financedprior to such date of incurrence);
(xh) obligations arising from agreements by Indebtedness (i) outstanding on the Company Effective Date listed on Schedule 10.1(a) and any Permitted Refinancing Indebtedness with respect thereto and (ii) intercompany Indebtedness outstanding on the Effective Date (and to the extent such intercompany Indebtedness is not between or a Restricted Subsidiary to provide for indemnificationamong Credit Parties or any 100% Non-Guarantor Pledgee, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection listed on Schedule 10.1(b)) and any Permitted Refinancing Indebtedness with the acquisition or disposition of any business or assets of a Restricted Subsidiaryrespect thereto;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries Hedging Agreements incurred in the ordinary course of business provided and, at the time entered into, not for speculative purposes;
(i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiaries) or Indebtedness attaching to assets that are acquired by the obligations Borrower or any Restricted Subsidiary, in each case after the Effective Date as the result of a Permitted Acquisition or similar Investments permitted under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;Section 10.5; provided, that:
Appears in 2 contracts
Sources: Ninth Amendment (LPL Financial Holdings Inc.), Eighth Amendment (LPL Financial Holdings Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, create, issue, incur, assume, guarantee assume or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents (including pursuant to Sections 2.16 and 2.17 and any Acquired Permitted Refinancing Debt incurred to Refinance such Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.;
(b) Notwithstanding Indebtedness (including Guarantee Obligations thereunder) in respect of the foregoingSenior Interim Loans, the Company andSenior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Refinance such Indebtedness;
(c) Indebtedness of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company Borrower or another Restricted any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is made pursuant to not a Guarantor shall (x) be evidenced by the Intercompany Note or (y) otherwise be outstanding on the Closing Date so long as such Indebtedness is evidenced by an intercompany note substantially in the form attached as Annex A of Exhibit L or otherwise subject to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer subordination terms substantially identical to the Company or a Restricted Subsidiary) shall be deemed subordination terms set forth in Exhibit L, in each case, to be an incurrence of such Indebtedness by the obligor not extent permitted by this clause Requirements of Law and not giving rise to material adverse tax consequences, (vi)ii) any Subsidiary that is not a Guarantor owing to any other Subsidiary that is not a Guarantor and (iii) to the extent permitted by Section 10.5, any Subsidiary that is not a Guarantor owing to the Borrower or any Guarantor;
(viid) guarantees Indebtedness in respect of any Restricted Subsidiary made in accordance with the provisions bankers’ acceptance, bank guarantees, letter of Section 1013;
(viii) obligations of the Company credit, warehouse receipt or any Guarantor similar facilities entered into in the ordinary course of business (aincluding in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims); 715000788 12406500715000788 12406500
(e) pursuant subject to Interest Rate Agreements designed to protect the Company or any compliance with Section 10.5, Guarantee Obligations incurred by (i) Restricted Subsidiary against fluctuations in interest rates Subsidiaries in respect of Indebtedness of the Company Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 10.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 10.1) and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 10.1(e) is subordinated to the Obligations, such Guarantee Obligations 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 and (B) no guarantee by any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such any Permitted Additional Debt (or Indebtedness then outstanding, under clause (b) under any Currency Hedging Agreements, relating to above) shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Obligations substantially on the terms set forth in the Guarantee;
(f) Guarantee Obligations (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 10.5(d), (g), (h), (i), (q), (r) and (s);
(g) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of the Company acquisition, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, or improvement of such fixed or capital assets; (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Closing Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each of the foregoing subclauses (i) and (ii), the Borrower shall be in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenant, as such covenant is recomputed as at the last day of the most recently ended Test Period as if such incurrence had occurred on the first day of such Test Period); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;[Reserved];
(h) Indebtedness outstanding on the date hereof listed on Schedule 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiaries) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for after the purpose Closing Date as the result of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any timea Permitted Acquisition; provided that the principal amount of any that:
(A) such Indebtedness permitted under this clause (ix) did not in each case existed at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or such Person became a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligationsat the time such assets were acquired and, in each case, incurred was not created in connection anticipation thereof,
(B) 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 a merger with such Person or any of its Subsidiaries),
(C) (1) the Stock of such Person is pledged to the Collateral Agent to the extent required under Section 9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and a joinder to the Intercompany Note, in each case to 715000788 12406500715000788 12406500 the extent required under Section 9.11; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 10.2, equally and ratably secure such Indebtedness assumed with the acquisition or disposition Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred under Section 10.1(g), and
(D) after giving effect to the assumption of any business or assets such Indebtedness, to such acquisition and to any related Pro Forma Adjustment, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant, as such covenant is recomputed as at the last day of a Restricted Subsidiarythe most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(xiii) loan notes, if any, issued any Permitted Refinancing Indebtedness incurred to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of Refinance such Capital StockIndebtedness;
(xiik) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of such Person is pledged to the Collateral Agent to the extent required under Section 9.11(b) and (2) such Person executes a supplement to each of the Sytner Group plc Guarantee, the Security Agreement and the Pledge Agreement and a joinder to the Intercompany Note, in each case to the extent required under Section 9.11;
(B) after giving effect to the incurrence of any such Indebtedness, to such acquisition and to any related Pro Forma Adjustment, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenant, as such covenant is recomputed as at the last day of its Subsidiaries the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test Period;
(C) the maturity of such Indebtedness is not earlier than, and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon any event of default) is required prior to, 91 days after the Latest Maturity Date of any Facility hereunder (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company Borrower or any Subsidiary Guarantor except to the extent (1) permitted under Section 10.5 and its Restricted Subsidiaries (2) that after giving effect to the incurrence of any such Indebtedness, to such acquisition and to any related Pro Forma Adjustment, the Borrower shall be in compliance on a Pro Forma Basis with the ordinary course Adjusted Financial Performance Covenant, as such covenant is recomputed as at the last day of business provided that the obligations under most recently ended Test Period as if such letters incurrence and acquisition had occurred on the first day of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreementsuch Test Period;
Appears in 2 contracts
Sources: Fifth Amendment and Waiver Agreement (Samson Resources Corp), Fifth Amendment and Waiver Agreement (Samson Resources Corp)
Limitation on Indebtedness. (a) The Company Holdings will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company that Holdings or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Holdings and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness Incurred by the Loan Parties (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (c) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof), (d) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and any Refinancing Indebtedness in respect thereof and (e) pursuant to the Company Senior ABL Facility, in a maximum principal amount for all such Indebtedness at any time outstanding under this clause (b)(i)(I) not exceeding in the Company's Credit Agreement aggregate the amount equal to the sum of (A) $2,330.0 million plus (B) the greater of (x) $1,900.0 million and (y) an amount equal to (1) the North American Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(ix), plus (C) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness,” in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including any refinancing accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (as defined belowII) Indebtedness Incurred by the Loan Parties (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations, (c) constituting Rollover Indebtedness and (d) in respect of such Indebtedness) Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9, in an aggregate principal amount at any one time for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to exceed $920,000,000 in any case under clause (i) of the Credit Agreement or definition of “Maximum Incremental Facilities Amount,” treating Additional Obligations, Refinancing Indebtedness, Rollover Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect of letters Indebtedness Incurred in reliance on clause (i) of credit under the Credit Agreement, definition of “Maximum Incremental Facilities Amount” (and guarantees by Guarantors Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect thereof; providedof such Additional Obligations, howeverRefinancing Indebtedness, that Rollover Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), together with Refinancing Indebtedness in respect of the foregoing amount shall be reduced by Indebtedness described in subclauses (a), (b) the U.S. dollar equivalent of any loan notes referred to in clause (xic) and (d) of this Section 1008(b) not collateralized by cash clause (II), plus, without duplication of incremental amounts included in excess the definition of $40,000,000 and (b) “Refinancing Indebtedness,” the aggregate amount of Indebtedness incurred pursuant to clause all fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such Refinancing Indebtedness;
(ii) Indebtedness (A) of the Company any Restricted Subsidiary to Holdings, or (B) of Holdings or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to Holdings or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) (A) Indebtedness of represented by the Company Senior Notes, (B) any Indebtedness (other than the Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness (or the Exchange Securitiesunutilized commitments) described in this Subsection 8.1(b)(iii) or Subsection 8.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person, at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $300.0 million and not otherwise referred to in this definition 5.0% of "Permitted Indebtedness"Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence face amount of such Indebtedness by letter of credit or (B) consisting of accommodation guarantees for the Company benefit of trade creditors of Holdings or other obligor not permitted by this clause (v)any of its Restricted Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by Holdings or any Restricted Subsidiary owing to the Company of Indebtedness or another any other obligation or liability of Holdings or any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by Holdings or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of Holdings or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of Holdings or any Restricted Subsidiary (other than any Indebtedness Incurred by Holdings or such Indebtedness by Restricted Subsidiary, as the obligor not permitted by case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of Holdings or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of provided that such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred is extinguished in the ordinary course of business business), or (B) consisting of the Company or any Restricted Subsidiary; providedguarantees, howeverindemnities, that such Currency Hedging Agreements do not increase the Indebtedness obligations in respect of earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of Holdings or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which Holdings or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an aggregate principal amount at any time outstanding not to exceed the greater of $250.0 million and 4.50% of Consolidated Total Assets or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by Holdings as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), Holdings may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) Holdings or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or assets Person, or any merger or consolidation of a any Person with or into Holdings or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into Holdings or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) Holdings would have a Consolidated Total Leverage Ratio equal to or less than 5.00:1.00 or (2) the Consolidated Total Leverage Ratio of Holdings would equal or be less than the Consolidated Total Leverage Ratio of Holdings immediately prior to giving effect thereto; provided, further, that if, at Holdings’ option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection Contribution Indebtedness and any Refinancing Indebtedness with the tender offer for all of such Capital Stockrespect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of the Sytner Group plc shares of Disqualified Stock issued in accordance with Subsection 8.1(a), and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of its Subsidiaries Holdings or any Restricted Subsidiary in an aggregate principal amount not to exceed $90,000,000 at any one timetime outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets;
(xiv) Indebtedness of Holdings or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into Holdings or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets; and
(xiiixv) obligations Indebtedness of any Foreign Subsidiary in respect an aggregate principal amount at any time outstanding not exceeding an amount equal to (I) the greater of letters (x) $400.0 million and (y) 7.0% of credit or other credit support provided Foreign Consolidated Total Assets plus (II) an amount equal (but not less than zero) to (A) the Foreign Borrowing Base less the Foreign Borrowing Base as calculated on March 31, 2015 less (B) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) in excess of the Company and its Restricted Subsidiaries amount set forth in the ordinary course immediately preceding clause (A) plus (III) in the event of business provided that any refinancing of any Indebtedness Incurred under this clause (xv), the obligations under aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;refinancing.
Appears in 1 contract
Sources: Credit Agreement (Univar Inc.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.any Loan Document;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under Borrower to any Subsidiary and of any Subsidiary to the Company's Credit Agreement Borrower or any other Subsidiary;
(including c) Indebtedness outstanding on the date hereof and listed on Schedule 7.6(c) and any refinancing refinancings, refundings, renewals or extensions thereof (as defined belowwithout increasing, or shortening the maturity of, the principal amount thereof);
(d) of such IndebtednessIndebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by subsection 7.1(a) in an aggregate principal amount not to exceed $40,000,000 at any one time outstanding outstanding;
(i) Unsecured Indebtedness of the Borrower in respect of the Existing Subordinated Notes in an aggregate principal amount not to exceed $920,000,000 in any case under the Credit Agreement or 100,000,000 and in respect of letters any refinancing of credit all or any portion thereof under a subordinated note indenture having subordination provisions as favorable to the Credit Agreement, Lenders as those in the Existing Subordinated Indenture and guarantees by Guarantors in respect thereof; provided, however, that no scheduled principal payments or prepayments prior to the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness scheduled maturity date of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant Existing Subordinated Notes in an aggregate principal amount not to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of the Existing Subordinated Notes so refinanced and any premiums, fees and expenses paid in connection with such Indebtedness then outstandingrefinancing, (bii) under any Currency Hedging Agreements, relating to (i) unsecured Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, Borrower in each case, incurred in the ordinary course of business respect of the Company Bridge Subordinated Debt or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, Senior Subordinated Notes in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at 200,000,000 and on terms reasonably acceptable to the Agents, and (iii) unsecured Indebtedness of the Borrower under subordinated notes in an aggregate principal amount of up to $100,000,000 pursuant to a subordinated note indenture having subordination provisions as favorable to the Lenders as those in the Existing Subordinated Indenture and having no scheduled principal payments or prepayments prior to September 30, 2007 and any time; refinancing of any such Indebtedness pursuant to such a subordinated note indenture, provided that the principal amount Net Cash Proceeds of such subordinated notes (but not any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, refinancing thereof)are applied as determined contemplated by the Company in good faith, of the acquired or constructed asset or improvement so financed;subsection 2.12(c); 100 94
(xf) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) additional Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed $90,000,000 10,000,000 at any one time; time outstanding;
(xiiig) obligations Indebtedness under Hedging Agreements entered into with any Hedging Lender in respect the ordinary course of letters of credit or other credit support business, provided by the Company and its Restricted Subsidiaries that such Hedging Agreements are entered into in the ordinary course of business to hedge or mitigate risks as to which the Borrower or any of its Subsidiaries reasonably believes it is exposed in the conduct of its business or the management of its liabilities;
(h) Indebtedness contemplated by subsection 7.5(c);
(i) Indebtedness incurred by any Foreign Subsidiary, provided that (i) the aggregate principal amount of all such Indebtedness of any Foreign Subsidiary which is not a Subsidiary Guarantor or a Foreign Subsidiary Borrower shall not exceed $10,000,000 or the equivalent thereof at any one time outstanding and (ii) the aggregate principal amount of all such Indebtedness of all Foreign Subsidiaries which are not Subsidiary Guarantors or Foreign Subsidiary Borrowers shall not exceed $60,000,000 or the equivalent thereof at any one time outstanding (any Indebtedness incurred pursuant to this subsection 7.6(i), "Permitted Foreign Debt"); and
(j) Indebtedness of any Person that becomes a Subsidiary of the Borrower in a Permitted Acquisition or Indebtedness otherwise assumed by the Borrower or any of its subsidiaries in connection with a Permitted Acquisition in an aggregate principal amount for all such Indebtedness at any time outstanding of up to $10,000,000;
(k) Indebtedness incurred by any Foreign Subsidiary supported by a Letter of Credit ("Supported Foreign Indebtedness"), provided that the obligations under aggregate principal amount of all such letters of credit are supported by letters of credit Indebtedness shall not exceed $100,000,000 at any one time outstanding; and
(l) to the extent that the Receivables Subsidiary's or any other credit support issued Person's obligation to purchase or provided acquire Sold Receivables under the Credit Agreement;Receivables Purchase Facility is deemed to be an obligation to lend money to the Borrower, any Indebtedness of the Borrower under the Receivables Purchase Facility.
Appears in 1 contract
Sources: Credit Agreement (Scotts Company)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted the Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurindirectly, Incur, contingently or otherwise (collectively, "incur")otherwise, any Indebtedness, except:
(a) (i) Indebtedness arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15, and (including ii) any Acquired Credit Agreement Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) (A) Indebtedness of the Company arising under the Company's Credit Agreement Existing Senior Secured Notes (including any refinancing (as defined below) of such Indebtednessguarantees in respect thereof) in an aggregate principal amount at any one time outstanding under this sub-clause (A) (other than with respect to the capitalization of interest in kind) not to exceed $920,000,000 the outstanding principal amount of the Existing Senior Secured Notes as of the Closing Date (after giving effect to the Transactions) and (B) any Permitted Refinancing Indebtedness Incurred to Refinance (in any case whole or in part) such Indebtedness, (ii) (A) Indebtedness arising under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and Existing Senior Unsecured Notes (including any guarantees by Guarantors in respect thereof; provided, however, that the foregoing ) in an aggregate principal amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in outstanding under this sub-clause (xiA) (other than with respect to the capitalization of this Section 1008(binterest in kind) not collateralized by cash in excess to exceed the outstanding principal amount of $40,000,000 the Existing Senior Unsecured Notes as of the Closing Date (after giving effect to the Transactions) and (bB) the aggregate amount of any Permitted Refinancing Indebtedness incurred pursuant Incurred to clause Refinance (xiiin whole or in part) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
such Indebtedness, (iii) (A) Indebtedness arising under the Existing Term Loans (including any guarantees in respect thereof) in an aggregate principal amount outstanding under this sub-clause (A) (other than with respect to the capitalization of interest in kind) not to exceed the outstanding principal amount of the Company pursuant Existing Term Loans as of the Closing Date (after giving effect to the Securities Transactions) and (B) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or the Exchange Securities and in part) such Indebtedness of any Guarantor pursuant (it being understood that such Indebtedness incurred under this clause (iii) shall be subject to a guarantee of Customary Junior Priority Lien Intercreditor Agreement to the Securities or extent secured by the Exchange Securities;
Collateral), (iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(vA) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations arising under the Securities and to all Senior Indebtedness; provided, further, that New Tranche A Second Out Notes (including any disposition, pledge or transfer of any such Indebtedness to a Person guarantees in respect thereof) in an aggregate principal amount outstanding under this sub-clause (A) (other than a disposition, pledge with respect to the capitalization of interest in kind) not to exceed the outstanding principal amount of the New Tranche A Second Out Notes as of the Closing Date (after giving effect to the Transactions) and (B) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or transfer to a Restricted Subsidiaryin part) such Indebtedness (it being understood that such Indebtedness incurred under this clause (iv) shall be deemed subject to be a Customary Equal Priority Lien Intercreditor Agreement to the extent secured by the Collateral, and shall constitute Second Out Indebtedness), (v)
(A) Indebtedness arising under the New Tranche B Second Out Notes (including any guarantees in respect thereof) in an incurrence aggregate principal amount outstanding under this sub-clause (A) (other than with respect to the capitalization of interest in kind) not to exceed the outstanding principal amount of the New Tranche B Second Out Notes as of the Closing Date (after giving effect to the Transactions) and (B) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness by the Company or other obligor not permitted by (it being understood that such Indebtedness incurred under this clause (v) shall be subject to a Customary Equal Priority Lien Intercreditor Agreement to the extent secured by the Collateral, and shall constitute Second Out Indebtedness);
, (vi) (A) Indebtedness of a Restricted Subsidiary owing arising under the New Third Out Notes (including any guarantees in respect thereof) in an aggregate principal amount outstanding under this sub-clause (A) (other than with respect to the Company capitalization of interest in kind) not to exceed the outstanding principal amount of the New Third Out Notes as of the Closing Date (after giving effect to the Transactions) and (B) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or another Restricted Subsidiary; provided in part) such Indebtedness (it being understood that such Indebtedness incurred under this clause (vi) shall be subject to a Customary Equal Priority Lien Intercreditor Agreement to the extent secured by the Collateral, and shall constitute Third Out Indebtedness) and (vii) (A) Indebtedness arising under the New Third Out Holdco Notes (including any guarantees in respect thereof) in an aggregate principal amount outstanding under this sub-clause (A) (other than with respect to the capitalization of interest in kind) not to exceed the outstanding principal amount of the New Third Out Holdco Notes as of the Closing Date (after giving effect to the Transactions) and (B) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness (it being understood that any such Indebtedness is made pursuant (including any guarantees) incurred under this clause (vii) by Holdings, the Borrower or the Subsidiary Guarantors shall be subject to a Customary Equal Priority Lien Intercreditor Agreement, and shall constitute Third Out Indebtedness); provided that, notwithstanding any other provision herein to the contrary, no Person other than a Credit Party shall at any time be an intercompany note obligor in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer respect of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi)Indebtedness;
(viii) guarantees Indebtedness constituting reimbursement obligations in respect of any Restricted Subsidiary made in accordance with the provisions bankers’ acceptance, bank guarantees, letters of Section 1013;
(viii) obligations of the Company credit, warehouse receipt or any Guarantor similar facilities entered into in the ordinary course of business and consistent with past practice (including in respect of workers compensation claims), performance, completion or surety bonds, health, disability or other benefits or other Indebtedness with respect to reimbursement type obligations, in any such case, to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from governmental authorities, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and (ii) Indebtedness 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), (b), (h) pursuant to Interest Rate Agreements designed to protect the Company or and (u) of this Section 10.1, Guarantee Obligations Incurred by (i) any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company Borrower or any Restricted other Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) that is permitted to be Incurred under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or this Agreement and (ii) obligations to purchase or sell assets or properties, the Borrower in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount respect of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable that is permitted to be Incurred under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any timeAgreement; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Valuethat, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by if the Company or a Restricted Subsidiary applicable Indebtedness is subordinated to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with Obligations, any such Guarantee Obligations shall be subordinated to the tender offer for all of Obligations and (y) the guaranteed Indebtedness would be permitted hereunder to be Incurred directly by such Capital Stockguaranteeing Subsidiary or the Borrower, as applicable;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by that the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under the any Credit AgreementFacility, and guarantees by Guarantors (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof; provided, howeverin a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $3,500.0 million, that plus (B) in the foregoing amount shall be reduced by (a) the U.S. dollar equivalent event of any loan notes referred to in clause (xi) refinancing of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) any such Indebtedness, the aggregate amount of Indebtedness fees, underwriting discounts, premiums and other costs and expenses incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company or (B) of the Company or any Restricted Subsidiary to any Restricted Subsidiary; provided, that any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Company or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this clause (ii);
(iii) Indebtedness (x) represented by the Notes (other than any Additional Notes), the Permanent Notes outstanding on the Issue Date (or any Permanent Notes issued in respect thereof or in exchange therefor), or any other Indebtedness (other than the Indebtedness described in clause (ii) above) outstanding on the Issue Date, or (y) represented by Permanent Notes issued in connection with the payment of PIK Interest (as defined in the Permanent Notes Indenture); and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iii) or paragraph (a) above;
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the acquisition of Capital Stock of any Person at any time outstanding pursuant to this clause shall not exceed an amount equal to the greater of $175.0 million and 15.0% of Consolidated Tangible Assets;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407), or (B) without limiting Section 413, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407);
(vii) Indebtedness of the Company or any Restricted Subsidiary under (A) arising from the honoring of a check, draft or similar instrument drawn against insufficient funds, provided that such Indebtedness is extinguished within five Business Days of its Incurrence, or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any Inventory Facilitybusiness, assets or Person;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(ivviii) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition respect of "Permitted Indebtedness";
(vA) Indebtedness letters of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturitycredit, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company bankers’ acceptances or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing similar instruments or obligations issued, or relating to the Company liabilities or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; providedobligations incurred, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (aincluding those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), or (B) pursuant completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to Interest Rate Agreements designed to protect liabilities or obligations incurred, in the ordinary course of business, including in respect of liabilities or obligations of franchisees, or (C) Hedging Obligations, entered into for bona fide hedging purposes, or (D) Management Guarantees or Management Indebtedness, or (E) the financing of insurance premiums in the ordinary course of business, or (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, or (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary against fluctuations maintains an overdraft, cash pooling or other similar facility or arrangement;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in interest rates connection with, a Financing Disposition or (B) otherwise Incurred in respect of connection with a Special Purpose Financing; provided that (1) such Indebtedness of is not recourse to the Company or any Restricted Subsidiary as that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 407 for so long as such obligations do not exceed Indebtedness shall be so recourse, and (3) in the aggregate principal amount of event that at any time thereafter such Indebtedness then outstandingshall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this Section 407(b)(ix);
(b) under any Currency Hedging Agreements, relating to (ix) Indebtedness of the Company or any Restricted Subsidiary and/or in an aggregate principal amount at any time outstanding not exceeding an amount equal to (iiA) obligations (1) the Foreign Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to purchase or sell assets or propertiesclause (ix) of this paragraph (b) plus (B) in the event of any refinancing of any Indebtedness Incurred under this clause (x), in each casethe aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(xi) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xii) Indebtedness of (A) the ordinary course Company or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Company or any Restricted Subsidiary; provided, however, or (B) any Person that such Currency Hedging Agreements do not increase the Indebtedness is acquired by or other obligations of merged or consolidated with or into the Company or any Restricted Subsidiary outstanding other (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Company would have a Consolidated Total Leverage Ratio equal to or less than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements 7.25:1.00 or (c2) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations Consolidated Total Leverage Ratio of the Company would equal or be less than the Consolidated Total Leverage Ratio of the Company immediately prior to giving effect thereto; and any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under Refinancing Indebtedness with respect to any such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofIndebtedness;
(ixxiii) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed Incurred as consideration in connection with the any acquisition of assets (including Capital Stock), business or development of real or personalPerson, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part merger or consolidation of any Person with or into the purchase price Company or cost of construction or improvement of property used in the business of the Companyany Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding $100.0 million;
(xiv) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with paragraph (a) above, and any Refinancing Indebtedness with respect thereto; and
(xv) Indebtedness of the Company or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $200.0 million and 14.0% of Consolidated Tangible Assets.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 407, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 407) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in paragraph (b) above, the Company, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of such clauses (including in part under one such clause (ix) not to exceed $35,000,000 outstanding at any timeand in part under another such clause); provided that any Indebtedness Incurred pursuant to clause (b)(iv) of this Section 407 as limited by the proviso thereto, or clause (b)(xv) of this Section 407, shall, at the Company’s election, cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of paragraph (a) of this Section 407 from and after the first date on which such Restricted Subsidiary could have Incurred such Indebtedness under paragraph (a) of this Section 407 without reliance on such clause; (iii) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; and (iv) the principal amount of Indebtedness outstanding under any clause of paragraph (b) above shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness.
(d) For purposes of determining compliance with any dollar-denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the dollar-equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness, provided that (x) the dollar-equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), 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 (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing and (z) the dollar-equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to a Senior Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, (i) the Issue Date, (ii) any date on which any of the respective commitments under such Senior Credit Facility shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (iii) the date of such Incurrence. The principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary Incurred to provide for indemnification, customary purchase price closing adjustments, earn-outs or refinance other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notesIndebtedness, if anyIncurred in a different currency from the Indebtedness being refinanced, issued shall be calculated based on the currency exchange rate applicable to a holder of the shares of Capital Stock of Sytner Group plc currencies in connection with which such respective Indebtedness is denominated that is in effect on the tender offer for all date of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;refinancing. Section 408. [Reserved].
Appears in 1 contract
Sources: Indenture (Servicemaster Co)
Limitation on Indebtedness. (a) The Company will Issuer shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; PROVIDED, issueHOWEVER, incurthat the Issuer or any Restricted Subsidiary may Incur Indebtedness if on the date of such Incurrence and after giving effect thereto the Debt to EBITDA Ratio would be less than 6:1; PROVIDED FURTHER, assumeHOWEVER, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurthat, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless if such Indebtedness proposed to be Incurred pursuant to the preceding proviso is incurred by Senior Indebtedness, such Senior Indebtedness may not be Incurred unless on the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence date of such Indebtedness taken as one period is at least equal Incurrence and after giving effect thereto the Senior Debt to or greater EBITDA Ratio would be less than 2.00:14.5:1.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Issuer and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Bank Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed the sum of (1) with respect to a revolving credit facility, up to $920,000,000 in 50,000,000 and (2) with respect to any case under term loan facilities, up to an amount equal to the Credit Agreement or in respect greater of letters (a) $335,000,000 and (b) the Term Loan Borrowing Base less the aggregate amount of credit under the Credit Agreement, and guarantees by Guarantors in respect thereofall prepayments of principal applied to permanently reduce any such Indebtedness; provided, however, that the foregoing amount shall Bank Indebtedness to be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in incurred under clause (xi2) of this Section 1008(b) not collateralized by cash above in excess of $40,000,000 and (b) 335,000,000 may only be incurred if, after giving effect to such Incurrence, the aggregate amount of Indebtedness incurred pursuant Senior Debt to clause (xii) of this Section 1008(b) in excess of $20,000,000EBITDA Ratio would be less than 4.5:1;
(ii) Indebtedness of the Company Issuer owed to and held by any Wholly Owned Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by the Issuer or any Restricted Wholly Owned Subsidiary; PROVIDED, HOWEVER, that (1) any subsequent issuance or transfer of any Capital Stock or any other event that results in any such Wholly Owned Subsidiary under ceasing to be a Wholly Owned Subsidiary or any Inventory Facilitysubsequent transfer of any such Indebtedness (except to the Issuer or a Wholly Owned Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness by the issuer thereof and (2) if the Issuer is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Securities;
(iii) Indebtedness (1) represented by the Securities (not including any Additional Securities) and the Guarantees, (2) outstanding on the Closing Date (other than the Indebtedness described in clauses (i) and (ii) above), (3) consisting of Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iii) (including Indebtedness Refinancing Indebtedness) or Section 4.03 (a) or (4) consisting of guarantees of any Indebtedness permitted under clauses (i) and (ii) of this paragraph (b); Supplemental Indenture July 15, 2005
(1) Indebtedness of a Restricted Subsidiary Incurred and outstanding on or prior to the date on which such Restricted Subsidiary was acquired by the Issuer (other than Indebtedness Incurred as consideration in, or to provide all or any portion of the Company funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Restricted Subsidiary became a Subsidiary of, or was otherwise acquired by, the Securities or Issuer); PROVIDED, HOWEVER, that on the Exchange Securities and date that such Restricted Subsidiary is acquired by the Issuer, the Issuer would have been able to Incur $1.00 of additional Indebtedness of any Guarantor pursuant to a guarantee Section 4.03(a) after giving effect to the Incurrence of the Securities or the Exchange Securities;
such Indebtedness pursuant to this clause (iv) and (2) Refinancing Indebtedness of Incurred by the Company Issuer or any a Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred in respect of Indebtedness Incurred pursuant to in this definition of "Permitted Indebtedness"clause (iv);
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstandingperformance bonds, (b) under any Currency Hedging Agreementsbankers' acceptances, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit and surely or other credit support appeal bonds provided by the Company Issuer and its the Restricted Subsidiaries in the ordinary course of business provided their business;
(vi) Purchase Money Indebtedness and Capitalized Lease Obligations in an aggregate principal amount not in excess of $20,000,000 at any time outstanding;
(vii) Hedging Obligations of the Issuer or any Guarantor directly related to Indebtedness permitted to be Incurred by the Issuer or any Guarantor pursuant to the Indenture for the purpose of fixing or hedging interest rate risk or currency fluctuations; or
(1) Indebtedness of another Person Incurred and outstanding on or prior to the date on which such Person consolidates with or merges with or into the Issuer (other than Indebtedness Incurred as consideration in, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person consolidates with or merges with or into the Issuer); PROVIDED, HOWEVER, that on the date that such transaction is consummated, the Issuer would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.03(a) after giving effect to the Incurrence of such Indebtedness pursuant to this clause (viii) and (2) Refinancing Indebtedness Incurred by the Issuer or the Successor Issuer in respect of Indebtedness Incurred pursuant to subclause (1) of this clause (viii).
(c) Notwithstanding the foregoing, the Issuer shall not Incur any Indebtedness pursuant to Section 4.03(b) above if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Obligations, unless such Indebtedness shall be subordinated to the Securities to at least the same extent as such Subordinated Obligations.
(d) Notwithstanding any other provision of this Section 4.03, the maximum amount of Indebtedness that the obligations under such letters Issuer or any Restricted Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be exceeded solely as a result of credit are supported by letters fluctuations in Supplemental Indenture July 15, 2005 the exchange rates of credit or other credit support issued or provided under currencies. For purposes of determining the outstanding principal amount of any particular Indebtedness Incurred pursuant to this Section 4.03:
(i) Indebtedness Incurred pursuant to the Credit AgreementAgreement prior to or on the Closing Date shall be treated as Incurred pursuant to Section 4.03(b)(i);
(ii) Indebtedness permitted by this Section 4.03 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.03 permitting such Indebtedness; and
(iii) in the event that Indebtedness meets the criteria of more than one of the types of indebtedness described in this Section 4.03, the Issuer, in its sole discretion, shall classify such Indebtedness and only be required to include the amount of such Indebtedness in one of such clauses."
Appears in 1 contract
Sources: Supplemental Indenture (Alaska Communications Systems Holdings Inc)
Limitation on Indebtedness. (a) The Company will Borrower shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assumeassume or suffer to exist any Indebtedness, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise except:
(collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired a) Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for Borrower under the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.Loan Documents;
(b) Notwithstanding the foregoing, incurrence by the Company and, Borrower of Indebtedness and letters of credit under the Credit Facility; provided that the aggregate principal amount of all Indebtedness and letters of credit of the Borrower and its Subsidiaries outstanding under the Credit Facility after giving effect to such incurrence (with letters of credit being deemed to have a principal amount equal to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all maximum potential liability of the following (collectively, the "Permitted Indebtedness"):
Borrower and its Subsidiaries thereunder) does not exceed an amount equal to $600,000,000 less (i) Indebtedness the aggregate amount of all repayments, optional or mandatory, of the Company principal of any term Indebtedness under the Company's Credit Facility (other than repayments that are immediately reborrowed) that have been made by the Borrower or any of its Subsidiaries since the date of this Agreement and (including ii) without duplication, the aggregate amount of all Net Cash Proceeds of Asset Sales applied by the Borrower or any refinancing of its Subsidiaries to permanently reduce the Indebtedness or commitments under the Credit Facility;
(as defined belowc) Indebtedness (i) of such Indebtednessthe Borrower to a Wholly Owned Subsidiary, (ii) of a Domestic Wholly Owned Subsidiary to the Borrower or any other Subsidiary, (iii) of Servicios to the Borrower or any Subsidiary in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 5,000,000 in any case under excess of the Credit amount of such Indebtedness outstanding on the date of this Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (aiv) the U.S. dollar equivalent of any loan notes Foreign Subsidiary (other than Servicios) to the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding (with respect to all such Foreign Subsidiaries of the Borrower) not to exceed $1,000,000, provided that such Indebtedness referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
clauses (iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of hereof, if to the Company Borrower or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to Domestic Subsidiary, is evidenced by a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany promissory note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) promissory notes which has or have been pledged to the payment Collateral Agent on terms and performance of conditions reasonably satisfactory to the Company's obligations under the Securities and to all Senior IndebtednessAdministrative Agent; provided, further, that any disposition, pledge or transfer of any such Indebtedness referred to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by in this clause (v)c) provided to Odessa shall be for capital expenditure purposes only;
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (id) Indebtedness of the Company Borrower or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness Borrower incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;finance the
Appears in 1 contract
Limitation on Indebtedness. (a) The Company Parent Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Parent Borrower or any Guarantor or constitutes Acquired GuarantorRestricted Subsidiary may Incur Indebtedness if on the date of a Restricted Subsidiary andthe Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00.; provided, further, that the amount of Indebtedness that may be Incurred pursuant to this Subsection 8.1(a) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of (x) $50,000,000 and (y) 7.50% of Consolidated Total Assets at any one time outstanding.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Parent Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness Incurred by the Borrowers and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (d) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof) and (e) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and any Refinancing Indebtedness in respect thereof, in a maximum principal amount for all such Indebtedness at any time outstanding not exceeding in the Company under aggregate the Company's Credit Agreement amount equal to the sum of (A) $61,700,000275,000,000, plus (B) the greater of (x) $300,000,000425,000,000 and (y) an amount equal to (1) the Domestic Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(ix), plus (C) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness”, in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including any refinancing accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (as defined belowII) Indebtedness Incurred by the Borrowers and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations, (d) constituting Rollover Indebtedness, and (e) in respect of such Indebtedness) Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9, in an aggregate principal amount at for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to clause (i) of the definition of “Maximum Incremental Facilities Amount”, treating (x) any one time then unused portion of Incremental Revolving Commitments made available in reliance on such clause as outstanding not Indebtedness and (y) Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to exceed $920,000,000 in any case under the Credit Agreement or this Subsection 8.1(b)(i)(II) in respect of letters Indebtedness Incurred in reliance on clause (i) of credit under the Credit Agreement, definition of “Maximum Incremental Facilities Amount” (and guarantees by Guarantors Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect thereof; providedof such Refinancing Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), however, that together with Refinancing Indebtedness in respect of the foregoing amount shall be reduced by Indebtedness described in subclauses (a), (b), (c), (d) the U.S. dollar equivalent of any loan notes referred to in clause and (xie) of this Section 1008(b) not collateralized by cash clause (II), plus, without duplication of incremental amounts included in excess the definition of $40,000,000 and (b) “Refinancing Indebtedness”, the aggregate amount of Indebtedness incurred pursuant to clause all fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such Refinancing Indebtednessrefinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Parent Borrower, or (B) of the Company Parent Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Parent Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) Indebtedness of represented by (A) [reserved], (B) any Indebtedness (other than the Company Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness described in this Subsection 8.1(b)(iii) or the Exchange SecuritiesSubsection 8.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $20,000,00025,000,000 and not otherwise referred to in this definition 3.504.00% of "Permitted Indebtedness"Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Parent Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Parent Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Parent Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Parent Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of the Parent Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Parent Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Parent Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of the Parent Borrower or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business business, or (aB) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Parent Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Parent Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an amount not to exceed $20,000,00050,000,000 in the aggregate at any one time outstanding, or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Parent Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Parent Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower Representative as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse, and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower Representative may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) the Parent Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or assets Person, or any merger, consolidation or amalgamation of a any Person with or into the Parent Borrower or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into the Parent Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger, consolidation or amalgamation); provided that on the date of such acquisition, merger, consolidation or amalgamation, after giving effect thereto, either (1) the OpCoParent Borrower would have a Consolidated Total Leverage Ratio equal to or less than 3.253.50:1.00 or (2) the Consolidated Total Leverage Ratio of the OpCoParent Borrower would equal or be less than the Consolidated Total Leverage Ratio of the OpCoParent Borrower immediately prior to giving effect thereto; provided, further, that if, at the Borrower Representative’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection Contribution Indebtedness and any Refinancing Indebtedness with the tender offer for all of such Capital Stockrespect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Subsection 8.1(a), and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of the Sytner Group plc and Parent Borrower or any of its Subsidiaries Restricted Subsidiary in an aggregate principal amount not to exceed $90,000,000 at any one timetime outstanding not exceeding an amount equal to the greater of $35,000,00075,000,000 and 5.7511.50% of Consolidated Total Assets;
(xiv) Indebtedness of the Parent Borrower or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger, consolidation or amalgamation of any Person with or into the Parent Borrower or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $20,000,00025,000,000 and 3.504.00% of Consolidated Total Assets; and
(xiiixv) obligations Indebtedness of any Foreign Subsidiary in respect an aggregate principal amount at any time outstanding not exceeding the greater of letters (x) $10,000,00020,000,000 and (y) an amount equal to (A) the Foreign Borrowing Base less (B) the aggregate principal amount of credit or other credit support provided Indebtedness Incurred by the Company Special Purpose Subsidiaries that are Foreign Subsidiaries and its Restricted Subsidiaries then outstanding pursuant to clause (ix) of this paragraph (b) plus (C) in the ordinary course event of business provided that any refinancing of any Indebtedness Incurred under this clause (xv), the obligations under aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;refinancing.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company Parent Guarantor will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurindirectly, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including Acquired Indebtedness) and the Parent Guarantor will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided that the Parent Guarantor may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), unless such Indebtedness is incurred by issue shares of Disqualified Stock and issue shares of Preferred Stock, if the Company or any Consolidated Total Leverage Ratio of the Parent Guarantor or constitutes Acquired Indebtedness of a and its Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period Subsidiaries is at least equal 6.25 to or greater than 2.00:1.
1.00, determined on a pro forma basis after giving effect thereto (b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all including a pro forma application of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtednessnet proceeds therefrom); provided, further, that Non-Guarantors may not Incur Indebtedness if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $100 million and (b) 1.0% of Total Assets of Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph.
(b) SECTION 3.2(a) will not prohibit the Incurrence of the following:
(1) Indebtedness Incurred pursuant to any dispositionCredit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), pledge in a maximum aggregate principal amount at any time outstanding not exceeding (i) the sum of (a) $3,950 million plus (b) the greater of $960 million and 100% of LTM EBITDA; plus (ii) any Refinancing Indebtedness in respect thereof;
(2) Guarantees by the Parent Guarantor or transfer any Restricted Subsidiary of Indebtedness or other obligations of the Parent Guarantor or any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence Subsidiary so long as the Incurrence of such Indebtedness or other obligations is not prohibited by the Company terms of this Indenture; provided that if the Indebtedness being Guaranteed constitutes Pari Passu Indebtedness or other obligor not permitted by this clause (v)Subordinated Indebtedness, the Guarantees must be pari passu with or subordinated to the same extent as the Notes or Note Guarantees;
(vi3) Indebtedness of the Parent Guarantor owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Parent Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Currency Hedging Agreements do not increase Indebtedness being beneficially held by a Person other than the Indebtedness Parent Guarantor or a Restricted Subsidiary; and
(ii) any sale or other obligations transfer of any such Indebtedness to a Person other than the Company Parent Guarantor or a Restricted Subsidiary; shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Parent Guarantor or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (a) the Notes (other than any Additional Notes), including any Guarantee thereof, (b) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1) and (3) above) outstanding on the Issue Date, and any Guarantee thereof, (c) Refinancing Indebtedness (including, with respect to the Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4) or clauses (2), (5), (10) or (19) of this SECTION 3.2(b) or Incurred pursuant to SECTION 3.2(a), and (d) Management Advances;
(5) Indebtedness of (x) the Parent Guarantor or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates Incurred or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements issued to finance an acquisition or (cy) under Persons that are acquired by the Parent Guarantor or any Commodity Price Protection Agreements which do not increase Restricted Subsidiaries or merged into or consolidated with the Parent Guarantor or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that on the date the acquisition, merger or consolidation, as applicable, is consummated, and after giving pro forma effect to the Incurrence of such Indebtedness, either (A) the total amount of Indebtedness Incurred and outstanding under this clause (5) is in an aggregate amount not to exceed the greater of (x) $200 million and (y) 2.5% of Total Assets or other obligations (B) any of the Company following are satisfied as of the date of incurrence (i) the Parent Guarantor would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to SECTION 3.2(a), (ii) the Consolidated Total Leverage Ratio of the Parent Guarantor and the Restricted Subsidiaries would not be higher than that immediately prior to such acquisition, merger or any consolidation, or (iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(6) Swap Obligations (excluding Swap Obligations entered into for speculative purposes (as determined in the good faith judgment of the Parent Guarantor));
(7) Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other than as a result Indebtedness Incurred pursuant to this clause and then outstanding, does not exceed the greater of fluctuations in commodity prices or by reason (a) $200 million and (b) 2.5% of fees, indemnities Total Assets and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors any Refinancing Indebtedness in respect thereof;
(ix8) Indebtedness in respect of (a) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment (including progress premiums), customs, value added or other - 118 - Indebtedness incurred tax or assumed in connection with the acquisition other guarantees or development of real other similar bonds, instruments or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; obligations and completion guarantees and warranties provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company Parent Guarantor or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice; (b) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five (5) Business Days of Incurrence; (c) customer deposits and advance payments (including progress premiums) received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; (d) letters of credit, bankers’ acceptances, warehouse receipts, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice; and (e) Cash Management Services;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Parent Guarantor and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Parent Guarantor and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Parent Guarantor from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or otherwise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Parent Guarantor, in each case, subsequent to the Issue Date, and any Refinancing Indebtedness in respect thereof; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Parent Guarantor and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause to the extent such Net Cash Proceeds or cash have been applied to make Restricted Payments;
(xi11) loan notesIndebtedness of Non-Guarantors in an aggregate amount, if anytogether with any Refinancing Indebtedness in respect thereof, not to exceed the greater of (a) $100 million and (b) 1.0% of Total Assets and at any time outstanding;
(12) Indebtedness consisting of promissory notes issued by the Parent Guarantor or any of its Subsidiaries to a holder any current or former employee, director or consultant of the shares Parent Guarantor, any of its Subsidiaries or any Parent Entity (or permitted transferees, assigns, estates or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital StockParent Guarantor or any Parent Entity that is permitted by SECTION 3.3;
(xii13) Indebtedness of the Sytner Group plc and Parent Guarantor or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (a) $300 million and (b) 3.5% of Total Assets;
(15) [Reserved];
(16) Indebtedness of the Parent Guarantor or any Guarantor arising pursuant to any Permitted Tax Restructuring, subject to complying with the express terms and conditions of the definition of “Permitted Tax Restructuring”;
(17) Indebtedness owed to the seller of any business or assets permitted to be acquired by the Parent Guarantor or any Restricted Subsidiary under this Indenture; provided that the aggregate amount of Indebtedness Incurred pursuant to this clause and then outstanding will not exceed $80 million;
(18) obligations in respect of Disqualified Stock in an amount not to exceed $90,000,000 75 million outstanding at any time;
(19) up to $60 million of liquidation preference or stated value of the iHeart Operations Preferred Stock, provided that, for the avoidance of doubt, the $60 million of liquidation preference or stated value cannot increase due to any anti-dilution or other similar terms of such preferred stock;
(20) Indebtedness permitted to remain outstanding under the Bankruptcy Plan, the Company’s guarantee of performance under the Transition Services Agreement and Indebtedness arising therefrom as well as Indebtedness from the Company’s indemnification obligations under the Tax Matters Agreement, and any Refinancing Indebtedness in respect thereof; and
(21) Indebtedness incurred by the Parent Guarantor or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are deposited with the Trustee within five (5) Business Days to satisfy or discharge the Notes or exercise the Company’s legal defeasance or covenant defeasance, in each case, in accordance with this Indenture.
(c) For purposes of determining compliance with, and the outstanding amount of any particular Indebtedness, Disqualified Stock or Preferred Stock, Incurred or issued pursuant to and in compliance with, this SECTION 3.2:
(1) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one timeof the types of Indebtedness described in SECTIONS 3.2(a) and 3.2(b), the Parent Guarantor, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in SECTION 3.2(a) or one of the clauses of SECTION 3.2(b); provided that Indebtedness outstanding on the Issue Date under the Credit Agreement shall be treated as incurred under SECTION 3.2(b)(1) and may not be reclassified;
(xiii2) additionally, except as set forth in SECTION 3.2(c)(1) above, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in SECTIONS 3.2(a) and 3.2(b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification;
(3) in the case of any Refinancing Indebtedness, such Indebtedness shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing;
(4) Guarantees of, or obligations in respect of letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the ordinary course determination of business provided that the a particular amount of Indebtedness shall not be included;
(5) if obligations under such in respect of letters of credit credit, bankers’ acceptances or other similar instruments are supported by Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to of SECTION 3.2(a) or SECTION 3.2(b) and the letters of credit credit, bankers’ acceptances or other credit support similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(6) the amount of any Disqualified Stock of the Parent Guarantor or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the liquidation preference thereof on the date of issuance;
(7) Indebtedness, Disqualified Stock or Preferred Stock, permitted by this SECTION 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness, Disqualified Stock or Preferred Stock, but may be permitted in part by one such provision and in part by one or more other provisions of this SECTION 3.2 permitting such Indebtedness, Disqualified Stock or Preferred Stock; and
(8) the amount of Indebtedness issued at a price less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of GAAP.
(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or provided amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness or the issuance of Disqualified Stock or Preferred Stock for purposes of this SECTION 3.2.
(e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by such Restricted Subsidiary of the Parent Guarantor as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this SECTION 3.2, the Credit Agreement;Parent Guarantor shall be in default of this SECTION 3.2).
(f) For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness, the Dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be calcu
Appears in 1 contract
Sources: Indenture (iHeartMedia, Inc.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.any Loan Document;
(b) Notwithstanding Indebtedness of (i) the foregoingBorrower to any Subsidiary, the Company and, (ii) any Subsidiary Guarantor to the extent specifically set forth belowBorrower or any other Subsidiary, (iii) any Subsidiary that is not a Subsidiary Guarantor to the Restricted Subsidiaries may incur each Borrower or any Subsidiary Guarantor in an amount not to exceed $20,000,000 outstanding at any one time, and all (iv) any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor;
(c) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 6.3(g); provided that the aggregate principal amount of such Indebtedness, plus the aggregate principal amount of Indebtedness permitted by Section 6.2(h), shall not at any time exceed $40,000,000 outstanding;
(d) Indebtedness outstanding on the Closing Date and listed on Schedule 6.2(d) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof or any shortening of the following maturity of any principal amount thereof, except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);
(collectivelye) Guarantee Obligations made in the ordinary course of business by (i) the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor, (ii) the "Permitted Indebtedness"):Borrower or any of its Subsidiaries of obligations of any Subsidiary that is not a Subsidiary Guarantor in an amount not to exceed $20,000,000 outstanding at any time and (iii) any Subsidiary that is not a Subsidiary Guarantor of the obligations of any other Subsidiary that is not a Subsidiary Guarantor;
(i) Indebtedness of the Company under Borrower in respect of the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) Senior Notes in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in 350,000,000, (ii), Guarantee Obligations of any case under the Credit Agreement or Subsidiary Guarantor in respect of letters of credit under the Credit Agreementsuch Indebtedness, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant Borrower that refinances the Senior Notes and Guarantee Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the maturity date of such refinancing Indebtedness shall be no earlier than six months after the Latest Maturity Date, (B) the terms of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable to the Securities or Borrower and the Exchange Securities Subsidiary Guarantors than the terms of the Senior Notes and (C) the principal amount of such refinancing Indebtedness does not exceed the principal amount of any Guarantor pursuant Senior Notes refinanced thereby except by an amount equal to a guarantee of the Securities reasonable premium or the Exchange Securities;
other similar amount paid, and fees and expenses reasonably incurred, in connection therewith and (iv) Indebtedness of the Company Borrower that refinances Indebtedness incurred in accordance with clause (iii) above and this clause (iv) and Guarantee Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the maturity date of such refinancing Indebtedness shall be no earlier than six months after the maturity date of such Indebtedness incurred in accordance with clause (iii) above, (B) the terms of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable to the Borrower and the Subsidiary Guarantors than the terms of such Indebtedness incurred in accordance with clause (iii) above and (C) the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness incurred in accordance with clause (iii) above, except by an amount equal to a reasonable premium or any Restricted Subsidiary outstanding on the initial Issue Date other similar amount paid, and not otherwise referred to fees and expenses reasonably incurred, in this definition of "Permitted Indebtedness"connection therewith;
(vg) Indebtedness of the Company owing Borrower or its Subsidiaries incurred to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person engaged in, or assets used or useful in, a Restricted Subsidiarybusiness permitted pursuant to Section 6.15; provided that any (i) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date at the time such Indebtedness is incurred, (ii) both immediately prior and after giving effect to the incurrence thereof, no Default or Event of Default shall exist or would result therefrom, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 6.1 after giving effect to such incurrence of Indebtedness (determined on the assumption that such incurrence of Indebtedness had occurred on the first day of the Company owing to a Restricted Subsidiary that relevant period measured by such covenants), (iv) such Indebtedness is not a Guarantor is made pursuant to an intercompany note in also incurred by or guaranteed by any Subsidiaries of the form attached as Annex A to this Indenture Borrower other than the Subsidiary Guarantors and is unsecured not incurred by or guaranteed by any other Person and (v) if such Indebtedness is secured, (A) such Indebtedness is secured by the Collateral (or a portion thereof) on a second lien, subordinated in right basis to the Obligations and is not secured by any property or assets of payment from and after the Borrower or any of its Subsidiaries other than the Collateral (or a portion thereof), (B) the security agreements relating to such time Indebtedness are substantially the same as the Securities shall become due and payable Security Documents (whether at Stated Maturity, acceleration or otherwise) with such differences as are reasonably satisfactory to the payment Administrative Agent; provided that such differences are not more favorable to the investors in such secured Indebtedness) and performance (C) an agent or representative acting on behalf of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence holders of such Indebtedness by shall have executed and delivered the Company Second Lien Intercreditor Agreement or other obligor not permitted by this clause (v)an accession thereto in form and substance satisfactory to the Administrative Agent;
(vih) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiarysecured by Liens permitted by Section 6.3(l); provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness, plus the aggregate principal amount of Indebtedness then permitted by Section 6.2(c), shall not at any time exceed $40,000,000 outstanding, (b) under any Currency Hedging Agreements, relating to ;
(i) Indebtedness of the Company Borrower or any Restricted Subsidiary and/or (ii) obligations to purchase its Subsidiaries arising from the honoring by a bank or sell assets other financing institution of a check, draft or properties, in each case, incurred similar instrument inadvertently drawn against insufficient funds in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofbusiness;
(ixj) Indebtedness of the Company Borrower or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development its Subsidiaries arising from agreements providing for indemnification, adjustment of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business business, assets or a Subsidiary, other than the guaranties 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 of its Subsidiaries (contingent obligations referred to in a Restricted Subsidiaryfootnote to financing statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (i)) and (ii) 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 Borrower and its Subsidiaries in connection with such disposition;
(xik) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) subordinated Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount at any time outstanding not to exceed $90,000,000 5,000,000 issued to directors, officers or employees of the Borrower or any of its Subsidiaries in connection with the redemption or purchase of Capital Stock that is not secured by any assets of the Borrower or any of its Subsidiaries, does not require cash payments prior to the stated maturity of the Senior Notes and contains subordination terms reasonably acceptable to the Administrative Agent;
(l) Indebtedness of the Borrower consisting of outstanding Permitted Foreign Currency Letters of Credit, the Dollar Equivalent of which shall not exceed $20,000,000 in aggregate principal amount as of the most recent Calculation Date;
(m) Credit Agreement Refinancing Indebtedness; and
(n) other Indebtedness, not included in clauses (a) through (m) above, not to exceed $50,000,000 in an aggregate principal amount (or accreted value, as applicable) at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;time outstanding.
Appears in 1 contract
Sources: Credit Agreement (B&G Foods, Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Material Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that (x) the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Material Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00 and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding clause (x) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed $300.0 million at any time outstanding.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under the any Credit AgreementFacility, and guarantees by Guarantors (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof; provided, howeverin a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $1,500.0 million, that the foregoing amount shall be reduced by plus (aB) the U.S. dollar equivalent greater of (x) $2,100.0 million and (y) an amount equal to (1) the Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Domestic Subsidiaries and then outstanding pursuant to subsection 7.1(b)(ix), plus (C) in the event of any loan notes referred to in clause (xi) refinancing of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) any such Indebtedness, the aggregate amount of Indebtedness fees, underwriting discounts, premiums and other costs and expenses incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Company Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that (x) any such Indebtedness outstanding to any Restricted Subsidiary that is not a Subsidiary Guarantor shall be subordinated in right of payment in a liquidation or bankruptcy to the Loans and all other Obligations owing the Secured Parties and (ii) any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this subsection 7.1(b)(ii);
(iii) Indebtedness of represented by the Company pursuant to Senior Notes issued on the Securities or Closing Date and the Exchange Securities Senior Subordinated Notes issued on the Closing Date, any Indebtedness (other than the Indebtedness described in clause (ii) above) outstanding on the Closing Date and any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness described in this subsection 7.1(b)(iii) or the Exchange Securitiessubsection 7.1(a);
(iv) Purchase Money Obligations and Capitalized Lease Obligations, and any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $150.0 million and not otherwise referred to in this definition 3.0% of "Permitted Indebtedness"Consolidated Tangible Assets;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) (i) Guarantees by the Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this subsection 7.1), or (B) shall be deemed without limiting subsection 7.2, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (visubsection 7.1);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations Indebtedness of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company Borrower or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument drawn against fluctuations in interest rates insufficient funds, provided that such Indebtedness is extinguished within five Business Days of its Incurrence, or (B) consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), or assets (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, or (C) Hedging Obligations entered into for bona fide hedging purposes, or (D) Management Guarantees or Management Indebtedness, or (E) the financing of insurance premiums in the ordinary course of business, or (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, or (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, or (H) Junior Capital in an amount not to exceed $100.0 million at any time outstanding;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Borrower or any Restricted SubsidiarySubsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this subsection 7.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower may classify such Indebtedness in whole or in part as Incurred under this subsection 7.1(b)(ix);
(x) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xi) loan notesIndebtedness of (A) the Borrower or any Restricted Subsidiary Incurred to finance or refinance, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc or otherwise Incurred in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the tender offer for all Borrower or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such Capital Stockacquisition, merger or consolidation, after giving effect thereto, (1) either (x) the Borrower would have a Consolidated Total Leverage Ratio equal to or less than 7.25:1.00 or (y) the Consolidated Total Leverage Ratio of the Borrower would be less than the Consolidated Total Leverage Ratio of the Borrower immediately prior to giving effect thereto, and any Refinancing Indebtedness with respect to any such Indebtedness, and (2) the aggregate principal amount of all Indebtedness Incurred and then outstanding pursuant to this clause (xi) by Restricted Subsidiaries that are not Loan Parties (taken together with the aggregate principal amount of Indebtedness Incurred and then outstanding pursuant to subsection 7.1(a) by Restricted Subsidiaries that are not Loan Parties) shall not exceed $300.0 million;
(xii) Indebtedness of the Sytner Group plc Borrower or any Restricted Subsidiary Incurred as consideration in connection with, or otherwise to finance, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary and any of its Subsidiaries Refinancing Indebtedness with respect thereto, in an aggregate principal amount not to exceed $90,000,000 at any one timetime outstanding not exceeding $100.0 million; and
(xiii) obligations Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $250.0 million and 5.0% of Consolidated Tangible Assets.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this subsection 7.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this subsection 7.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in subsection 7.1(b), the Borrower, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of such clauses (including in part under one such clause and in part under another such clause); provided that any Indebtedness Incurred pursuant to clause (b)(iv) of this subsection 7.1 as limited by the proviso thereto, or clause (b)(xiii) of this subsection 7.1, shall, at the Borrower’s election, cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of subsection 7.1(a) from and after the first date on which such Restricted Subsidiary could have Incurred such Indebtedness under subsection 7.1(a) without reliance on such clause; and (iii) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP.
(d) For purposes of letters determining compliance with any Dollar-denominated restriction on the Incurrence of credit or other credit support provided by Indebtedness denominated in a foreign currency, the Company and its Restricted Subsidiaries Dollar-equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the ordinary course case of business term Indebtedness, or first committed, in the case of revolving credit Indebtedness, provided that (x) the obligations Dollar-equivalent principal amount of any such Indebtedness outstanding on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), 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 (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing and (z) the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to a Senior Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Borrower’s option, (i) the Closing Date, (ii) any date on which any of the respective commitments under such letters Senior Credit Facility shall be reallocated between or among facilities or subfacilities hereunder or thereunder, or on which such rate is otherwise calculated for any purpose thereunder or (iii) the date of credit are supported by letters such Incurrence. The principal amount of credit or any Indebtedness Incurred to refinance other credit support issued or provided under Indebtedness, if Incurred in a different currency from the Credit Agreement;Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
(e) Notwithstanding anything to the contrary in this Section 7.1, the Borrower agrees for the benefit of THD (and not for the benefit of any other party) that, until the THD Guarantee Release Date, the Borrower shall not, and shall not permit any Restricted Subsidiary to, Incur any Indebtedness in violation of Section 4.03 of the THD Guarantee.
Appears in 1 contract
Sources: Credit Agreement (HSI IP, Inc.)
Limitation on Indebtedness. (a) The Company Parent Guarantor will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurindirectly, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including Acquired Indebtedness) and the Parent Guarantor will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided that the Parent Guarantor may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), unless such Indebtedness issue shares of Disqualified Stock and issue shares of Preferred Stock, if either (x) the Consolidated Total Leverage Ratio of the Parent Guarantor and its Restricted Subsidiaries is incurred by no greater than 6.25 to 1.00 or (y) the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for of the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period Parent Guarantor and its Restricted Subsidiaries on a consolidated basis is at least equal 2.00 to or greater than 2.00:1.
1.00, in each case determined on a pro forma basis after giving effect thereto (b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all including a pro forma application of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtednessnet proceeds therefrom); provided, further, that Non-Guarantors may not Incur Indebtedness if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $200 million and (b) 2.5% of Total Assets of Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph.
(b) SECTION 3.2(a) will not prohibit the Incurrence of the following:
(1) Indebtedness Incurred pursuant to any dispositionCredit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), pledge including the Notes issued on the Issue Date and the Existing 2027 Secured Notes issued on the August 2019 Issue Date, in a maximum aggregate principal amount at any time outstanding not exceeding (i) the sum of (a) $3,950 million plus (b) the greater of $960 million and 100% of LTM EBITDA; plus (ii) any Refinancing Indebtedness in respect thereof;
(2) Guarantees by the Parent Guarantor or transfer any Restricted Subsidiary of Indebtedness or other obligations of the Parent Guarantor or any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence Subsidiary so long as the Incurrence of such Indebtedness or other obligations is not prohibited by the Company terms of this Indenture; provided that if the Indebtedness being Guaranteed constitutes Pari Passu Indebtedness or other obligor not permitted by this clause (v)Subordinated Indebtedness, the Guarantees must be pari passu with or subordinated to the same extent as the Notes or Note Guarantees;
(vi3) Indebtedness of the Parent Guarantor owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Parent Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Currency Hedging Agreements do not increase Indebtedness being beneficially held by a Person other than the Indebtedness Parent Guarantor or a Restricted Subsidiary; and
(ii) any sale or other obligations transfer of any such Indebtedness to a Person other than the Company Parent Guarantor or a Restricted Subsidiary; shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Parent Guarantor or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (a) the Existing 2026 Secured Notes (other than any additional Existing 2026 Secured Notes), including any Guarantee thereof, and the Senior Notes (other than any additional Senior Notes), including any Guarantee thereof, (b) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1), (3) or (4)(a)) outstanding on the Issue Date, and any Guarantee thereof, (c) Refinancing Indebtedness (including, with respect to the Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4) or clauses (2), (5), (10) or (19) of this SECTION 3.2(b) or Incurred pursuant to SECTION 3.2(a), and (d) Management Advances;
(5) Indebtedness of (x) the Parent Guarantor or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates Incurred or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements issued to finance an acquisition or (cy) under Persons that are acquired by the Parent Guarantor or any Commodity Price Protection Agreements which do not increase Restricted Subsidiaries or merged into or consolidated with the Parent Guarantor or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that on the date the acquisition, merger or consolidation, as applicable, is consummated, and after giving pro forma effect to the Incurrence of such Indebtedness, either (A) the total amount of Indebtedness Incurred and outstanding under this clause (5) is in an aggregate amount not to exceed the greater of (x) $300 million and (y) 3.5% of Total Assets, or other obligations (B) any of the Company following are satisfied as of the date of incurrence (i) the Parent Guarantor would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to SECTION 3.2(a), (ii) either (a) the Consolidated Total Leverage Ratio of the Parent Guarantor and the Restricted Subsidiaries would not be higher, or any (b) the Fixed Charge Coverage Ratio of the Parent Guarantor and the Restricted Subsidiaries on a consolidated basis would not be lower, in each case than that immediately prior to such acquisition, merger or consolidation, or (iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(6) Swap Obligations (excluding Swap Obligations entered into for speculative purposes (as determined in the good faith judgment of the Parent Guarantor));
(7) Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other than as a result Indebtedness Incurred pursuant to this clause and then outstanding, does not exceed the greater of fluctuations in commodity prices or by reason (a) $400 million and (b) 5.0% of fees, indemnities Total Assets and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors any Refinancing Indebtedness in respect thereof;
(ix8) Indebtedness in respect of (a) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment (including progress premiums), customs, value added or other - 118 - Indebtedness incurred tax or assumed in connection with the acquisition other guarantees or development of real other similar bonds, instruments or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; obligations and completion guarantees and warranties provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company Parent Guarantor or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice; (b) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five (5) Business Days of Incurrence; (c) customer deposits and advance payments (including progress premiums) received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; (d) letters of credit, bankers’ acceptances, warehouse receipts, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice; and (e) Cash Management Services;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Parent Guarantor and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Parent Guarantor and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Parent Guarantor from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or otherwise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Parent Guarantor, in each case, subsequent to the Issue Date, and any Refinancing Indebtedness in respect thereof; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Parent Guarantor and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause to the extent such Net Cash Proceeds or cash have been applied to make Restricted Payments;
(xi11) loan notesIndebtedness of Non-Guarantors in an aggregate amount, if anytogether with any Refinancing Indebtedness in respect thereof, not to exceed the greater of (a) $200 million and (b) 2.5% of Total Assets and at any time outstanding;
(12) Indebtedness consisting of promissory notes issued by the Parent Guarantor or any of its Subsidiaries to a holder any current or former employee, director or consultant of the shares Parent Guarantor, any of its Subsidiaries or any Parent Entity (or permitted transferees, assigns, estates or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital StockParent Guarantor or any Parent Entity that is permitted by SECTION 3.3;
(xii13) Indebtedness of the Sytner Group plc and Parent Guarantor or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (a) $350 million and (b) 4.0% of Total Assets;
(15) Indebtedness in respect of any Qualified Securitization Facility or any Receivables Facility, which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (a) $200 million and (b) 2.5% of Total Assets;
(16) Indebtedness of the Parent Guarantor or any Guarantor arising pursuant to any Permitted Tax Restructuring;
(17) Indebtedness owed to the seller of any business or assets permitted to be acquired by the Parent Guarantor or any Restricted Subsidiary under this Indenture; provided that the aggregate amount of Indebtedness Incurred pursuant to this clause and then outstanding will not exceed $90,000,000 80 million;
(18) obligations in respect of Disqualified Stock or Preferred Stock in an aggregate amount outstanding which, when taken together with the liquidation preference of all other Disqualified Stock or Preferred Stock issued pursuant to this clause and then outstanding, will not exceed the greater of (a) $200 million and (b) 2.5% of Total Assets;
(19) [Reserved];
(20) the Company’s guarantee of performance under the Transition Services Agreement and Indebtedness arising therefrom as well as Indebtedness from the Company’s indemnification obligations under the Tax Matters Agreement, and any Refinancing Indebtedness in respect thereof; and
(21) Indebtedness incurred by the Parent Guarantor or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are deposited with the Trustee within five (5) Business Days to satisfy or discharge the Notes or exercise the Company’s legal defeasance or covenant defeasance, in each case, in accordance with this Indenture.
(c) For purposes of determining compliance with, and the outstanding amount of any particular Indebtedness, Disqualified Stock or Preferred Stock, Incurred or issued pursuant to and in compliance with, this SECTION 3.2:
(1) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in SECTIONS 3.2(a) and 3.2(b), the Parent Guarantor, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in SECTION 3.2(a) or one of the clauses of SECTION 3.2(b); provided that Indebtedness outstanding on the Issue Date under the Credit Agreement shall be treated as incurred under SECTION 3.2(b)(1) and may not be reclassified;
(2) additionally, except as set forth in SECTION 3.2(c)(1) above, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in SECTIONS 3.2(a) and 3.2(b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification;
(3) in the case of any one time; Refinancing Indebtedness, such Indebtedness shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (xiiiincluding, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing;
(4) Guarantees of, or obligations in respect of letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the ordinary course determination of business provided that the a particular amount of Indebtedness shall not be included;
(5) if obligations under such in respect of letters of credit credit, bankers’ acceptances or other similar instruments are supported by Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to of SECTION 3.2(a) or SECTION 3.2(b) and the letters of credit credit, bankers’ acceptances or other credit support similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(6) the amount of any Disqualified Stock of the Parent Guarantor or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the liquidation preference thereof on the date of issuance;
(7) Indebtedness, Disqualified Stock or Preferred Stock, permitted by this SECTION 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness, Disqualified Stock or Preferred Stock, but may be permitted in part by one such provision and in part by one or more other provisions of this SECTION 3.2 permitting such Indebtedness, Disqualified Stock or Preferred Stock; and
(8) the amount of Indebtedness issued at a price less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of GAAP.
(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or provided under amortization of original issue discount, the Credit Agreement;payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness or the issuance of Disqualif
Appears in 1 contract
Sources: Indenture (iHeartMedia, Inc.)
Limitation on Indebtedness. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurindirectly, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the Company and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) if the Consolidated Coverage Ratio for the Company, calculated as of the date on which such additional Indebtedness is Incurred, would have been at least 2.00 to 1.00 (“Ratio Debt”); provided that the aggregate principal amount of Indebtedness (including Acquired Indebtedness) outstanding at any one time that may be Incurred pursuant to the foregoing amount by Non-Guarantor Subsidiaries (together with any Indebtedness that is Incurred or assumed by Non-Guarantor Subsidiaries under Section 4.09(b)(8)) shall be reduced by not exceed the greater of (ax) the U.S. dollar equivalent $150.0 million and (y) 2.5% of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and Total Assets.
(b) Section 4.09(a) shall not apply to the aggregate amount of following Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;collectively, “Permitted Debt”):
(ii1) Indebtedness of the Company or any Restricted Subsidiary Incurred under a Debt Facility, the Guarantees thereof and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof), including any Inventory Additional Notes (and any Subsidiary Guarantee thereof), in an aggregate principal amount outstanding at any one time not to exceed (A) in the case of any Debt Facility that is not a revolving credit facility (including the Term B Facility), $2,470.0 million; and (B) in the case of any Debt Facility that is a revolving credit facility (including the Revolving Facility), $750.0 million; provided, that the maximum amount permitted to be outstanding under this clause (1) shall not be deemed to limit additional Indebtedness under Debt Facilities to the extent that the Incurrence of such additional Indebtedness is permitted pursuant to Section 4.09(a) or any of the other provisions of this Section 4.09;
(iii2) Indebtedness represented by the Notes (other than any Additional Notes), including any Subsidiary Guarantee thereof;
(3) Indebtedness of the Company pursuant to and its Restricted Subsidiaries in existence on the Securities Issue Date (other than Indebtedness described in clauses (1), (2), (4), (5) or (6) of this Section 4.09(b) that is Incurred or existing on the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange SecuritiesIssue Date);
(iv4) Capitalized Lease Obligations, mortgage financings and Purchase Money Obligations and (b) any Indebtedness Incurred by the Company or any of its Restricted Subsidiaries to finance all or any part of the purchase, acquisition, design, development, lease, construction, replacement, maintenance, installation, improvement or insurance of any property (real or personal), plant or equipment or other fixed or capital assets (whether through the direct purchase of assets or property or the Capital Stock of any Person owning any such assets or property) or any satellite launch or in-orbit insurance premiums or launch services, and any Indebtedness arising from the conversion of the obligations of the Company or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness, including all Indebtedness Incurred to refund, refinance, replace, redeem, repurchase, retire, defease, discharge, exchange, renew, repay, prepay or extend any Indebtedness Incurred pursuant to this clause (4), in an aggregate principal amount outstanding on at any one time not to exceed the initial Issue Date greater of (x) $150.0 million and not otherwise referred to (y) 2.5% of Total Assets, plus, in the case of any refinancing or replacement of Indebtedness permitted under this definition clause (4) or any portion thereof, the aggregate amount of "Permitted Indebtedness"fees, underwriting discounts, accrued and unpaid interest, original issue discount, premiums (including tender premiums), defeasance costs and other costs and expenses incurred in connection therewith;
(v5) any Guarantee by the Company or a Restricted Subsidiary of Indebtedness or any other obligation of the Company or any Restricted Subsidiary so long as the Incurrence of such Indebtedness or other obligation by the Company or such Restricted Subsidiary is permitted under the terms of this Indenture;
(6) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person however,
(other than a disposition, pledge or transfer to A) if the Company or a Restricted Subsidiary Guarantor Incurs such Indebtedness owing to a Non-Guarantor Subsidiary) shall be deemed , such Indebtedness is subordinated in right of payment to be an incurrence the Company’s Obligations with respect to this Indenture or the Subsidiary Guarantee of such Indebtedness by the obligor not permitted by this clause (vi);Subsidiary Guarantor, as applicable; and
(viiB) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness any subsequent issuance or transfer of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness Capital Stock or other obligations of the Company or event which results in any Restricted Subsidiary outstanding such Indebtedness being beneficially held by a Person other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one timeCompany; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;and
Appears in 1 contract
Sources: Indenture (Maxar Technologies Inc.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):any Loan Document;
(i) Indebtedness of the Company under the Company's Credit Agreement (including Borrower or a Wholly Owned Subsidiary Guarantor to any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, other Loan Party and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor Loan Party to any other Subsidiary that is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to not a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Loan Party;
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (ic) Indebtedness of the Company Borrower or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or propertiesincluding, in each casewithout limitation, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ixObligations) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness secured by Liens permitted under this clause (ixby Section 7.3(g) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 25,000,000 at any one time; time outstanding;
(xiiid) obligations Indebtedness outstanding on the Initial Amendment Date and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without any increase in respect the principal amount thereof or any shortening of letters the maturity of credit or other credit support provided by the Company and its Restricted Subsidiaries any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business provided by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary; provided, that a Loan Party may not guaranty Indebtedness of a Subsidiary that is not a Loan Party unless such Loan Party could have incurred such Indebtedness or such Guarantee Obligation is subordinated to the obligations Obligations on substantially the terms of Schedule 7.2(f);
(f) unsecured Indebtedness owing to sellers of Towers and constituting a portion of the consideration for the acquisition of such Towers by the Borrower or a Subsidiary, so long as (x) such Indebtedness (excluding any deferred purchase consideration which is contingent) is subordinated to the Obligations on substantially the terms of Schedule 7.2(f) and (y) the aggregate principal amount of all Indebtedness under such this Section 7.2(f) at any one time outstanding shall not exceed $25,000,000 (including any deferred purchase consideration which is contingent);
(g) Indebtedness owed to credit card companies which are used to pay operating expenses associated with Towers and the Services Business and letters of credit to secure such Indebtedness in an aggregate amount not exceeding $1,000,000 at any one time outstanding;
(h) Indebtedness of any Subsidiary assumed in connection with any acquisition; provided, that such Indebtedness is not incurred and the terms thereof not amended, modified or supplemented (other than to permit such acquisition and except for such amendments, modifications or supplements that are supported not, when taken as a whole, adverse to the Lenders) in contemplation of such acquisition; provided, further, that both immediately prior and after giving effect to such acquisition, (i) no Event of Default shall have occurred and be continuing and (ii) the ratio of Consolidated Total Debt to Annualized Borrower EBITDA, calculated on a pro forma basis through the Revolving Credit Termination Date giving effect to such acquisition and (x) removing the financial results that would otherwise be included in such calculations in respect of any Property Disposed of after such date and on or prior to the date of making such acquisition and (y) including the financial results that would otherwise be excluded in such calculations in respect of any Property acquired after such date and on or prior to the date of making such acquisition, would not exceed 6.50 to 1.00 (both before and after giving effect to such acquisition);
(i) cash management obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case incurred in the ordinary course of business in connection with cash management activities;
(j) Indebtedness of the Borrower or any Subsidiary to the Borrower or any other Subsidiary to the extent constituting an Investment permitted by letters Section 7.7;
(k) other Indebtedness of credit the Borrower or any Subsidiary in an aggregate principal amount not to exceed $20,000,000 at any one time outstanding; and
(l) Indebtedness of any Specified Foreign Subsidiary denominated in Dollars or Permitted Foreign Currencies, in an aggregate amount not to exceed, at the time of the incurrence thereof, an amount equal to the dollar equivalent of $20,000,000 (i) for the period commencing on the Second Amendment and Restatement Effective Date and ending on December 31, 2014 and (ii) in any fiscal year of the Borrower thereafter; provided, however, that none of the Subsidiaries owning, leasing, operating or managing Towers may incur any of the Indebtedness permitted under clause (e) above (other credit support issued than pursuant to reimbursement obligations in respect of payment or provided under performance or removal bond surety arrangements in the Credit Agreement;ordinary course of business) or clause (f) above (other than pursuant to any deferred purchase consideration in the form of earn-outs which is contingent).
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by that the Company or any Note Guarantor or constitutes Acquired may Incur Indebtedness if on the date of a Restricted Subsidiary andthe Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of would be greater than 2.00:1.00 if such Indebtedness taken as one period is at least equal Incurred on or prior to December 1, 2001 or greater than 2.00:12.25:1.00 if such Indebtedness is Incurred thereafter.
(b) Notwithstanding the foregoingforegoing paragraph (a) of this Section 4.06, the Company and, to the extent specifically set forth below, the and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to Credit Agreement Facilities (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under or bankers' acceptances issued or created thereunder) and (without limiting the Credit Agreement, and guarantees by Guarantors foregoing) any Refinancing Indebtedness in respect thereof; provided, however, that the foregoing in a maximum principal amount shall be reduced by at any time outstanding (a) the U.S. dollar equivalent of giving effect to any loan notes referred to in clause (xi) of this Section 1008(brefinancing thereof) not collateralized by cash exceeding in excess the aggregate the amount equal to the sum of (x) $40,000,000 475.0 million and (by) the aggregate amount by which the Borrowing Base determined as of the date of such Incurrence exceeds $245.0 million (plus in the case of any refinancing of any Credit Facility or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing) less the aggregate principal amount of Indebtedness incurred Incurred pursuant to this clause (xiib)(i) of this under the Credit Facilities (or any refinancing thereof) that is permanently repaid pursuant to Section 1008(b) in excess of $20,000,0004.10;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company or (B) of the Company or any Restricted Subsidiary under to any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to a Person (other than a disposition, pledge or transfer to be a Restricted Subsidiary) shall be deemed to be an incurrence Subsidiary or any other subsequent transfer of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer except to the Company or a Restricted Subsidiary) shall will be deemed to be deemed, in each case, an incurrence Incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect issuer thereof;
(ixiii) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations the Notes (other than Additional Notes), any Indebtedness (other than the Indebtedness described in clauses (i) or Purchase Money Obligations or other - 118 - (ii) above) outstanding on the Issue Date and any Refinancing Indebtedness incurred or assumed Incurred in connection with the acquisition or development respect of real or personal, movable or immovable, property any Indebtedness described in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ixiii) not to exceed $35,000,000 outstanding at any time; provided that the principal amount or paragraph (a) of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedSection 4.06;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, createCreate, issue, incur, assume, guarantee or otherwise become liable in any manner become directly or indirectly liable for the payment respect of or otherwise incur, contingently or otherwise suffer to exist:
(collectively, "incur"), a) any Indebtedness (including pursuant to any Acquired Indebtedness)Receivables Transaction, unless such except for Indebtedness pursuant to all Receivables Transactions that is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of non-recourse with respect to the Company under the Company's Credit Agreement Borrower and its Subsidiaries (including other than any refinancing Receivables Subsidiary) and (as defined below) of such Indebtednessii) in an aggregate principal amount at any one time outstanding not exceeding 15% of Consolidated Total Assets at such time; or
(b) any Indebtedness of any of the Subsidiaries other than (i) Indebtedness of any Receivables Subsidiary pursuant to any Receivables Transaction permitted under Section 8.3(a), (ii) any Indebtedness of any Subsidiary as a guarantor under or pursuant to any of those certain Note Purchase Agreements or the Revolving Credit Agreement (in each case, in the amounts permitted thereunder as of the date hereof), in each case, so long as such Subsidiaries are Guarantors, (iii) any Indebtedness of any Subsidiary existing on the Closing Date and set forth on Schedule 8.3 and any refinancing thereof; provided that the then outstanding principal amount thereof is not increased and the weighted average maturity thereof is not decreased, (iv) any Indebtedness of any Subsidiary which is a Guarantor, (v) any Indebtedness of any Subsidiary owed to the Borrower or any other Subsidiary, (vi) any Indebtedness arising in respect of capital leases or purchase money obligations incurred in accordance with Section 8.2(f), (vii) any other Indebtedness of Subsidiaries in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $920,000,000 in 800,000,000 or (y) 10% of Consolidated Total Assets at the time such Indebtedness is incurred, (viii) Indebtedness of any case under Subsidiary of the Credit Agreement or Borrower in respect of letters of credit under the Credit Agreementnetting services, automatic clearinghouse arrangements, overdraft protections and guarantees by Guarantors similar arrangements in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to each case in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance connection with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into deposit accounts in the ordinary course of business business, (aix) pursuant to Interest Rate Agreements designed to protect any Guarantee Obligation of the Company or any Restricted Subsidiary against fluctuations in interest rates Borrower in respect of Indebtedness of the Company or incurred by any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ixviii) not hereof up to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 300,000,000 at any one time; time outstanding and (xiiix) obligations in respect any Indebtedness of letters of credit or other credit support provided by the Company Borrower and its Restricted Subsidiaries in the ordinary course of business provided that the obligations Guarantors under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit this Agreement;.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company Neither any Borrower nor any -------------------------- Subsidiary of a Borrower will notincur or be obligated on any Indebtedness, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become either directly or indirectly liable for the payment indirectly, by way of Guarantee, suretyship or otherwise incurotherwise, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):other than:
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000The Obligations;
(ii) Indebtedness Unsecured trade accounts payable and normal accruals incurred in the ordinary course of the Company or any Restricted Subsidiary under any Inventory Facilitybusiness;
(iii) Indebtedness existing as of the Company pursuant date of this Agreement and listed on Schedule 6.10 attached hereto (and any ------------- extensions, renewals, refinancings and replacements thereof in a principal amount not in excess of the amount of such Indebtedness outstanding immediately prior to the Securities effectiveness of such extension, renewal, refinancing or replacement and otherwise on terms no less favorable than the Exchange Securities and terms of such Indebtedness of any Guarantor pursuant to a guarantee as of the Securities or the Exchange Securitiesdate of this Agreement;
(iv) Capitalized Lease Obligations and Purchase money Indebtedness secured by Liens permitted under Section 7.2(a) pursuant to subparagraph (j) of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this 77 definition of "Permitted Indebtedness"Liens, provided that in no event shall the -------- aggregate outstanding principal amount of Indebtedness permitted by this clause (iv) exceed, at any one time or from time to time, $5,000,000.00;
(v) Indebtedness Loans or advances by Parent or any Subsidiary of the Company owing Parent to a Restricted Subsidiary; provided that any Indebtedness Subsidiary of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Parent;
(vi) Indebtedness Loans or advances by any Subsidiary of a Restricted Parent to Parent or any other Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi)Parent;
(vii) guarantees Guarantees of Indebtedness of Parent or any Restricted Subsidiary made of Parent by Parent or any Subsidiary of Parent; and
(viii) Indebtedness incurred pursuant to a Debt Offering by Parent or any Subsidiary of Parent so long as the Net Cash Proceeds are applied by the Parent or such Subsidiary of Parent to prepay the Loans hereunder in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;3.18(b)(iii).
Appears in 1 contract
Limitation on Indebtedness. (ai) The Company will notNeither the Parent nor any of the Companies will, and the Companies will not cause or permit any of its their respective Restricted Subsidiaries to, directly or indirectly, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable liable, contingently or otherwise, for the payment of of, or otherwise incur, contingently including by way of merger, consolidation or otherwise acquisition (collectively, "“incur"”), any Indebtedness (including any Acquired IndebtednessIndebtedness and the issuance of Disqualified Stock), unless except any of the Credit Parties and the Subsidiary Guarantors may incur Indebtedness (including the issuance of Disqualified Stock) if, at the time of such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each caseincurrence, the Company's Consolidated Fixed Charge Coverage Ratio for would, after giving effect to such incurrence or issuance and the most recent four full fiscal quarters for which financial statements are available immediately preceding application of the incurrence of such Indebtedness taken as one period is proceeds thereof, have been at least equal 2.0 to or greater than 2.00:11.0.
(bii) Notwithstanding the foregoing, the Company and, to Credit Parties and the extent specifically set forth below, the Restricted Subsidiaries Subsidiary Guarantors may incur each and all any of the following Indebtedness (collectively, the "“Permitted Indebtedness"”):
(iA) Indebtedness of the Company Credit Parties and the Subsidiary Guarantors under the Company's Note Documents;
(B) Indebtedness of the Credit Parties and their Restricted Subsidiaries under the Senior Financing Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount not to exceed $150,000,000 at any one time outstanding outstanding;
(C) Indebtedness of the Credit Parties under the Senior Subordinated Indebtedness Documents in an aggregate principal amount not to exceed $920,000,000 in any case 80,000,000 and Indebtedness of the Parent under the Credit Junior Holdings Subordinated Indebtedness Agreement or in respect of letters of credit under an aggregate principal amount not to exceed $80,000,000 plus the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to interest thereon capitalized in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) accordance with the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000terms thereof;
(iiD) Indebtedness of the Company or any Credit Parties and Restricted Subsidiary under any Inventory FacilitySubsidiaries outstanding on the Purchase Date and listed on Schedule 8.1(a)(ii);
(iiiE) Indebtedness of the Company pursuant a Credit Party or a Subsidiary Guarantor to the Securities another Credit Party or Subsidiary Guarantor so long as such Indebtedness is held by a Credit Party or a Subsidiary Guarantor or the Exchange Securities holder of a Permitted Lien thereon and provided such Indebtedness of any Guarantor pursuant to owing by a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness Obligations pursuant to a Person (other than a disposition, pledge or transfer written agreement satisfactory to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Agent;
(viF) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations Obligations, mortgage financings or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personalpurchase money obligations, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or price, lease expense, cost of construction construction, repair or improvement of property or addition to property, plant or equipment used in the business of such Credit Party or such Restricted Subsidiary, the CompanyCapital Stock of a Restricted Subsidiary that owns such property, plant or equipment, in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace Indebtedness incurred pursuant to this clause (ix) F), not to exceed $35,000,000 outstanding 30,000,000 at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedoutstanding;
(xG) Hedging Obligations that are incurred in the normal course of business for the purpose of fixing or hedging currency, commodity or interest rate risk (including with respect to any floating rate Indebtedness that is permitted by the terms of this Agreement to be outstanding) and not for speculative purposes;
(H) the guarantee by any Credit Party or any Restricted Subsidiary of Indebtedness of any other Credit Party or Restricted Subsidiary that was permitted to be incurred by another provision of this Section 8.2(a) or other obligations (including obligations under the operating leases), permitted to be incurred hereunder of any other Credit Party or Restricted Subsidiary of a Credit Party;
(I) Contingent Obligations (including obligations under leases, indemnification and guarantee obligations) in respect of Indebtedness and other obligations of Unrestricted Subsidiaries incurred in the ordinary course of business in connection with the financing of vehicles used in Permitted Businesses of such Unrestricted Subsidiaries;
(J) Indebtedness represented by guarantees or other Contingent Obligations in favor of airports, airport authorities and other Governmental Authorities for the construction of airport rental or related facilities to be used by any Company or any Restricted Subsidiary in the ordinary course of business that do not exceed in the aggregate $50,000,000 at any time outstanding;
(K) Indebtedness to finance the payment of insurance premiums and Indebtedness incurred in respect of workers’ compensation claims, self-insurance obligations, performance, surety, insurance and similar bonds and completion guarantees provided by any Credit Party or any Restricted Subsidiary in the ordinary course of business;
(L) Indebtedness arising from agreements by the Company of any Credit Party or a any Restricted Subsidiary to provide providing for indemnification, customary adjustment of purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business business, assets or assets Capital Stock of a Restricted Subsidiary;
(xiM) loan notesIndebtedness arising from the honoring by a bank or other financial institution of a check, if anydraft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, issued provided that such Indebtedness is extinguished within five Business Days of incurrence;
(N) Indebtedness of a Restricted Subsidiary incurred and outstanding on or prior to the date on which such Person was acquired by a holder Company or a Restricted Subsidiary (other than Indebtedness incurred in connection with or in contemplation of, or to provide all or any portion of the shares funds or credit support utilized to consummate, the transaction or series of Capital Stock related transactions pursuant to which such Person was acquired by a Company or a Restricted Subsidiary); provided, however, that on the date of Sytner Group plc such acquisition and after giving effect thereto, the Companies would have been able to incur at least $1.00 of additional Indebtedness pursuant to Section 8.2(a)(i);
(O) Indebtedness incurred in connection with the tender offer for all acquisition of vehicles directly from the manufacturer thereof, provided, that such Indebtedness does not exceed the net book value of such Capital Stockvehicles and no Event of Default shall exist after giving effect thereto and the use of proceeds thereof;
(xiiP) purchase money Indebtedness of a Company or any of its Restricted Subsidiaries incurred in connection with the purchase of a franchisee in an aggregate amount for all Companies and their Restricted Subsidiaries not to exceed $5,000,000 at any time outstanding;
(Q) Additional Indebtedness of the Sytner Group plc and Companies or any of its their Restricted Subsidiaries in an aggregate principal amount for all Companies and their Restricted Subsidiaries not to exceed $90,000,000 10,000,000 at any one timetime outstanding; and
(xiiiR) obligations Permitted Refinancing Indebtedness; provided, however, that no Permitted Indebtedness described in respect clause (N) and (R) above may be incurred if after giving effect to the incurrence of letters such Indebtedness and the use of credit or other credit support provided by the Company and its Restricted Subsidiaries proceeds thereof, an Event of Default shall exist.
(iii) For purposes of determining compliance with this Section 8.2(a), in the ordinary course event that an item of business proposed Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (A) through (R) of this Section 8.2(a) as of the date of incurrence thereof or is entitled to be incurred pursuant to paragraph (i) of this Section 8.2(a) as of the date of incurrence thereof, the Companies shall, in their sole discretion, classify (or later reclassify in whole or in part, in their sole discretion) such item of Indebtedness in any manner that complies with this Section 8.2(a). Accrual of interest, accrual of dividends, the accretion of accreted value and the payment of interest in the form of additional Indebtedness and the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred stock for purposes of this covenant.
(iv) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the U.S. dollar-equivalent principal amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was incurred, provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the obligations under applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange in effect on the date of such letters refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of credit are supported by letters such refinancing Indebtedness does not exceed the principal amount of credit or other credit support issued or provided under the Credit Agreement;such Indebtedness being refinanced.
Appears in 1 contract
Sources: Note Purchase Agreement (Vanguard Car Rental Group Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, createCreate, issue, incur, assume, guarantee or otherwise become liable in any manner become directly or indirectly liable for the payment respect of or otherwise incur, contingently or otherwise suffer to exist:
(collectively, "incur"), a) any Indebtedness (including pursuant to any Acquired Indebtedness)Receivables Transaction, unless such except for Indebtedness pursuant to all Receivables Transactions that is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of non-recourse with respect to the Company under the Company's Credit Agreement Borrower and its Subsidiaries (including other than any refinancing Receivables Subsidiary) and (as defined below) of such Indebtednessii) in an aggregate principal amount at any one time outstanding not exceeding 15% of Consolidated Total Assets at such time; or
(b) any Indebtedness of any of the Subsidiaries other than (i) Indebtedness of any Receivables Subsidiary pursuant to any Receivables Transaction permitted under subsection 8.3(a), (ii) any Indebtedness of any Subsidiary as a guarantor under or pursuant to any of those certain Note Purchase Agreements or the Existing Revolving Credit Agreement, in each case, so long as such Subsidiaries are Guarantors, (iii) any Indebtedness of any Subsidiary existing on the Closing Date and set forth on Schedule 8.3 and any refinancing thereof; provided that the then outstanding principal amount thereof is not increased and the weighted average maturity thereof is not decreased, (iv) any Indebtedness of any Subsidiary which is a Guarantor, (v) any Indebtedness of any Subsidiary owed to the Borrower or any other Subsidiary, (vi) any Indebtedness arising in respect of capital leases or purchase money obligations incurred in accordance with subsection 8.2(f), (vii) any other Indebtedness of Subsidiaries in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $920,000,000 in 800,000,000 or (y) 10% of Consolidated Total Assets at the time such Indebtedness is incurred, (viii) Indebtedness of any case under Subsidiary of the Credit Agreement or Borrower in respect of letters of credit under the Credit Agreementnetting services, automatic clearinghouse arrangements, overdraft protections and guarantees by Guarantors similar arrangements in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to each case in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance connection with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into deposit accounts in the ordinary course of business business, (aix) pursuant to Interest Rate Agreements designed to protect any Guarantee Obligation of the Company or any Restricted Subsidiary against fluctuations in interest rates Borrower in respect of Indebtedness of the Company or incurred by any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ixviii) not hereof up to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 300,000,000 at any one time; time outstanding and (xiiix) obligations in respect any Indebtedness of letters of credit or other credit support provided by the Company Borrower and its Restricted Subsidiaries in the ordinary course of business provided that the obligations Guarantors under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit this Agreement;.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company Parent will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Issuer and any Guarantor may Incur Indebtedness (aincluding Acquired Indebtedness) if on the U.S. dollar equivalent date of any loan notes referred such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), the Fixed Charge Coverage Ratio for the Parent and its Restricted Subsidiaries would have been at least 2.0 to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 1.0 and the Consolidated Net Leverage Ratio for the Parent and its Restricted Subsidiaries would have been at least 3.0 to 1.0.
(b) Section 4.01(a) will not prohibit the Incurrence of the following Indebtedness (“Permitted Debt”):
(i) Indebtedness Incurred pursuant to any Credit Facility (including in respect of letters of credit or bankers’ acceptances issued or created thereunder), and any Refinancing Indebtedness in respect thereof and Guarantees in respect of such Indebtedness in a maximum aggregate principal amount at any time outstanding not to exceed $100.0 million; plus in the case of any refinancing of any Indebtedness permitted under this Section 4.01(b)(i) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing; provided that the aggregate principal amount of Indebtedness incurred Incurred by Restricted Subsidiaries that are not Guarantors or the Issuer pursuant to clause (xii) of this Section 1008(b4.01(b)(i) in excess of shall not exceed $20,000,00010.0 million at any time;
(ii) Indebtedness of A. Guarantees by the Company Parent or any Restricted Subsidiary under any Inventory Facility;
(iii) of Indebtedness of the Company pursuant to the Securities Issuer or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or guarantees by any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor of Indebtedness of any other Restricted Subsidiary that is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time not a Guarantor, so long as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence Incurrence of such Indebtedness by is permitted under the Company or other obligor not permitted by terms of this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided Indenture, provided, that any if such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer subordinated to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company Notes or any Guarantor entered into in Note Guarantee, then such guarantees shall also be subordinated to the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect Note or such Note Guarantee on the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiarysame basis; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;or
Appears in 1 contract
Sources: Indenture (Ferroglobe PLC)
Limitation on Indebtedness. (a) The Company Parent Guarantor will not, and will not cause or permit any of its Restricted Subsidiaries to, createIncur, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur")indirectly, any Indebtedness except for (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken Incurred pursuant to clauses (1) to (14) below being herein referred to as one period is at least equal to or greater than 2.00:1.“Permitted Indebtedness”):
(b1) Notwithstanding the foregoingIndebtedness pursuant to any Debt Facilities; provided, the Company andhowever, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):that:
(i) Indebtedness of the Company under the Company's Credit Agreement immediately after giving effect to any such Incurrence, (including any refinancing (as defined below) of such Indebtednessx) in an the case of Incurring letters of credit, bank guarantees or other similar obligations, the aggregate principal amount at of all such obligations Incurred pursuant to this clause (1) (i)(x) (with such obligations being deemed to have a principal amount equal to the maximum potential liability of the Parent Guarantor and the Restricted Subsidiaries thereunder) then outstanding does not exceed A$30.0 million and (y) the aggregate principal amount of all such Indebtedness Incurred under this clause (1)(i)(y) and then outstanding does not exceed (I) prior to January 31, 2020, A$35.0 million, or (II) on and from January 31, 2020, (a) if the Consolidated Coverage Ratio would be less than 2.0 to 1.0, A$15.0 million, or (b) if not, A$35.0 million; and
(ii) such Indebtedness constitutes Payment Priority Obligations, Pari Passu Debt, Junior Secured Debt or Unsecured Debt;
(2) Indebtedness owed to and held by the Parent Guarantor and/or any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereofits Restricted Subsidiaries; provided, however, that the foregoing amount shall be reduced by (aA) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge subsequent issuance or transfer of any Equity Interest which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company Parent Guarantor or a Restricted Subsidiary) shall be deemed deemed, in each case, to be an incurrence constitute the Incurrence of such Indebtedness by the obligor not permitted thereon and (B) such Person is a party to the Amended Security Trust Deed as a “Intra-Group Lender” and such Indebtedness constitutes an “Intra-Group Liability” under the Amended Security Trust Deed;
(3) Preferred Stock of a Restricted Subsidiary held by the Parent Guarantor or any Restricted Subsidiary;
(4) the Notes (other than any Additional Notes) and the Note Guarantees thereof;
(5) [RESERVED];
(6) Refinancing Indebtedness in respect of Indebtedness Incurred pursuant to clause (4) or this clause (vi6) of this Section 4.03(a), provided that such Refinancing Indebtedness constitutes Pari Passu Debt;
(vii7) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into Hedging Obligations Incurred in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect and not for speculative purposes), provided that such Hedging Obligations constitute Payment Priority Obligations, Pari Passu Debt or Unsecured Debt;
(8) obligations in respect of workers’ compensation claims, payment obligations in connection with health, disability or other types of social security benefits, unemployment or other insurance or self-insurance obligations, insurance premium finance agreements, reclamation, statutory obligations, bankers’ acceptances, performance, bid, appeal, surety or similar bonds and letters of credit or completion and performance guarantees or equipment leases or other similar obligations provided or Incurred by the Company Parent Guarantor or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business business;
(9) Indebtedness arising from (i) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the Company or any Restricted Subsidiaryordinary course of business; provided, however, that such Currency Hedging Agreements do not increase Indebtedness is extinguished within five Business Days of its Incurrence and (ii) customer deposits and advance payments received in the Indebtedness ordinary course of business from customers for goods and services purchased, leased or other obligations rented in the ordinary course of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofbusiness;
(ix10) Indebtedness consisting of any Guarantee by the Issuer or any Note Guarantor of Indebtedness of the Company Issuer or any Restricted Subsidiary represented Note Guarantor that was permitted to be Incurred by Capital Lease Obligations or another provision of this Section 4.03; provided, however, that such Guarantees are subject to the Amended Security Trust Deed to the same extent as the Indebtedness which is being Guaranteed;
(11) Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing Incurred to finance all or any part of the purchase price or cost of construction design, development, construction, installation or improvement of property (real or personal), plant or equipment or other fixed or capital assets used or useful in the business of the CompanyParent Guarantor or any of its Restricted Subsidiaries or in a Related Business (in each case, whether through the direct purchase of such assets or the Equity Interest of any Person owning such assets), or repairs, additions or improvements to such assets, and any Refinancing Indebtedness Incurred to Refinance such Indebtedness, in an aggregate principal amount outstanding at any time which, when added together with the amount of Indebtedness Incurred pursuant to this clause (ixSection 4.03(a)(11) and then outstanding, does not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, greater of the acquired or constructed asset or improvement so financed(i) US$35.0 million and (ii) 5.0% of Consolidated Total Assets;
(x12) obligations Indebtedness to the extent that the net proceeds thereof are promptly deposited (and in no event more than five Business Days thereafter) to defease or to satisfy and discharge the Notes;
(13) Indebtedness arising from agreements by of the Company Parent Guarantor or a Restricted Subsidiary to provide providing for indemnification, customary adjustment of purchase price closing adjustmentsprice, earn-outs outs, Guarantees or other similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets of the Parent Guarantor or any business, assets or Equity Interest of a Restricted Subsidiary;Subsidiary (other than Guarantees of Indebtedness Incurred or assumed by any Person acquiring all or any portion of such business, assets or Equity Interest for the purpose of financing such acquisition); and
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii14) Indebtedness of the Sytner Group plc and Parent Guarantor or any of its Subsidiaries Restricted Subsidiary in an aggregate principal amount not to exceed $90,000,000 at any time outstanding which, when taken together with all other Indebtedness outstanding under this Section 4.03(a)(14), does not exceed US$5.0 million; and
(15) Indebtedness outstanding on the Issue Date pursuant to the Existing Andy’s Arrangements.
(b) For purposes of determining compliance with this Section 4.03:
(1) any Indebtedness outstanding under the Credit Facility on the Issue Date will be treated as Incurred under Section 4.03(a)(1) to the extent it meets the conditions of that section;
(2) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one time; of the types of Indebtedness described above, the Issuer, in its sole discretion, will be permitted to classify (xiiiand, other than with respect to Indebtedness incurred under Section 4.03(a)(1), may later reclassify) such item of Indebtedness (or any portion thereof) at the time of Incurrence (and in the case of a reclassification, only to the extent the reclassified item could be Incurred pursuant to the criteria at the time of such reclassification) in any manner that complies with, Section 4.03 and will only be required to include the amount and type of such Indebtedness in one of the above clauses;
(3) the Issuer will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above;
(4) if obligations in respect of letters of credit or are Incurred pursuant to a Debt Facility and relate to other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under Indebtedness, then such letters of credit are supported by shall be treated as Incurred pursuant under Section 4.03(a)(1) and such other Indebtedness shall not be included; and
(5) except as provided in Section 4.03(b)(4) of this paragraph, Guarantees of, or obligations in respect of letters of credit or other credit support issued or relating to Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included.
(c) For purposes of determining compliance with any U.S. dollar restriction on the Incurrence of Indebtedness where the Indebtedness Incurred is denominated in a different currency, the amount of such Indebtedness will be the U.S. Dollar Equivalent, determined on the date of the Incurrence of such Indebtedness; provided, however, that if any such Indebtedness denominated in a different currency is subject to a Currency Agreement with respect to U.S. dollars, covering all principal, premium, if any, and interest payable on such Indebtedness, the amount of such Indebtedness expressed in U.S. dollars will be as provided under in such Currency Agreement. The principal amount of any Refinancing Indebtedness Incurred in the Credit same currency as the Indebtedness being Refinanced will be the U.S. Dollar Equivalent of the Indebtedness Refinanced, except to the extent that (1) such U.S. Dollar Equivalent was determined based on a Currency Agreement;, in which case the Refinancing Indebtedness will be determined in accordance with the preceding sentence, and (2) the principal amount of the Refinancing Indebtedness exceeds the principal amount of the Indebtedness being Refinanced, in which case the U.S. Dollar Equivalent of such excess will be determined on the date such Refinancing Indebtedness is Incurred.
Appears in 1 contract
Sources: Indenture (Emeco Parts Pty LTD)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issueCreate, incur, assume, guarantee assume or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise suffer to exist (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence to "Incur") any Indebtedness, except:
(a) Indebtedness of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.any Loan Document; 70 65
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including either Borrower to any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, Subsidiary and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred Subsidiary to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company either Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiic) Indebtedness of the Sytner Group plc and any of its Subsidiaries secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed $90,000,000 25,000,000 at any one time; time outstanding, provided that during any fiscal year of either of the Borrowers, the Borrowers and the Subsidiaries do not incur more than $10,000,000 in aggregate principal amount of such other Indebtedness;
(xiiid) obligations Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof), provided that the aggregate principal amount owed pursuant to such Indebtedness is not increased by such refinancings, refundings, renewals or extensions thereof, and provided further that any refinancing, refunding, renewal or extension of the Intercompany Loans shall be with K&F;
(e) Indebtedness in the aggregate not exceeding the lesser of the unused L/C Commitment and the Revolving Credit Commitment in respect of trade letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such standby letters of credit are supported issued for the purpose of supporting (i) workers' compensation liabilities of the Borrowers or any of the Subsidiaries as required by letters law, (ii) performance, payment, deposit or surety obligations of credit the Borrowers or other credit support issued any of the Subsidiaries and (iii) environmental liabilities of the Borrowers or provided under any of the Credit AgreementSubsidiaries as required by law;
(f) Guarantee Obligations existing on the Closing Date and listed on Schedule 7.2(f) and any renewals, extensions or refundings thereof in an amount not exceeding the amount thereof immediately prior to such renewals, extensions or refundings;
(g) Guarantee Obligations of either of the Borrowers or any Subsidiary with respect to any obligation or liability of either of the Borrowers or any Subsidiary;
(h) Guarantee Obligations incurred after the date hereof in an aggregate principal amount not to exceed $1,000,000 at any time outstanding;
(i) Indebtedness outstanding pursuant to the Settlement Agreement in an aggregate principal amount not to exceed $4,500,000 plus the minimum statutory contributions required by the terms thereof; and
(j) Indebtedness in respect of Capital Lease Obligations incurred in a sale and leaseback transaction permitted by Section 7.11.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00; provided, further, that the amount of Indebtedness that may be Incurred pursuant to this Subsection 8.1(a), by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of (x) $150,000,000 and (y) the product of the Foreign Consolidated Total Assets Percentage multiplied by Foreign Consolidated Total Assets at any one time outstanding.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness Incurred by the Borrower and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (d) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof), (e) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and any Refinancing Indebtedness in respect thereof and (f) pursuant to any Letter of Credit Facility (and any Refinancing Indebtedness in respect thereof), in a maximum principal amount for all such Indebtedness at any time outstanding not exceeding in the Company under aggregate an amount equal to the Company's Credit Agreement sum of (A) $250,000,000, plus (B) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness”, in the event of any refinancing of any such Indebtedness (including with Specified Refinancing Indebtedness), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (II) Indebtedness Incurred by the Borrower and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations, (d) constituting Rollover Indebtedness, (e) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and (f) pursuant to any refinancing (as defined below) Letter of such Indebtedness) Credit Facility, in an aggregate principal amount at any one time for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to exceed $920,000,000 in any case under clause (i) of the Credit Agreement or definition of “Maximum Incremental Facilities Amount”, treating Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect of letters Indebtedness Incurred in reliance on clause (i) of credit under the Credit Agreement, definition of “Maximum Incremental Facilities Amount” (and guarantees by Guarantors Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect thereof; providedof such Refinancing Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), however, that together with Refinancing Indebtedness in respect of the foregoing amount shall be reduced by Indebtedness described in subclauses (a), (b), (c), (d), (e) the U.S. dollar equivalent of any loan notes referred to in clause and (xif) of this Section 1008(b) not collateralized by cash clause (II), plus, without duplication of incremental amounts included in excess the definition of $40,000,000 and “Refinancing Indebtedness”, in the event of any refinancing of such Indebtedness (b) including with Specified Refinancing Indebtedness), the aggregate amount of Indebtedness incurred pursuant to clause all fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower, or (B) of the Company Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) Indebtedness represented by (A) Obligations permitted to be Incurred pursuant to Subsection 8.1(b)(i) of the Company First Lien Credit Agreement (as in effect on the date hereof and whether or not the First Lien Credit Agreement is in effect), (B) any Indebtedness (other than the Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness described in this Subsection 8.1(b)(iii) or the Exchange SecuritiesSubsection 8.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person, at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $42,000,000 and not otherwise referred to in this definition 3.30% of "Permitted Indebtedness"Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of the Borrower or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of provided that such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred is extinguished in the ordinary course of business business), or (B) consisting of the Company or any Restricted Subsidiary; providedguarantees, howeverindemnities, that such Currency Hedging Agreements do not increase the Indebtedness obligations in respect of earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an amount not to exceed $72,000,000 in the aggregate at any one time outstanding or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) the Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or assets Person, or any merger or consolidation of a any Person with or into the Borrower or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Borrower would have a Consolidated Total Leverage Ratio equal to or less than 6.00:1.00 or (2) the Consolidated Total Leverage Ratio of the Borrower would equal or be less than the Consolidated Total Leverage Ratio of the Borrower immediately prior to giving effect thereto; provided, further, that if, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection Contribution Indebtedness and any Refinancing Indebtedness with the tender offer for all of such Capital Stockrespect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Subsection 8.1(a), and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries Restricted Subsidiary in an aggregate principal amount not to exceed $90,000,000 at any one timetime outstanding not exceeding an amount equal to the greater of $132,000,000 and 9.90% of Consolidated Total Assets;
(xiv) Indebtedness of the Borrower or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $30,000,000 and 2.40% of Consolidated Total Assets; and
(xv) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding the greater of (x) $60,000,000 and (y) an amount equal to (A) the Foreign Borrowing Base less (B) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) plus (C) in the event of any refinancing of any Indebtedness Incurred under this clause (xv), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Subsection 8.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Subsection 8.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (xiiiii) obligations in the event that Indebtedness Incurred pursuant to Subsection 8.1(b) meets the criteria of more than one of the types of Indebtedness described in Subsection 8.1(b), the Borrower, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Subsection 8.1(b) (including in part under one such clause and in part under another such clause); provided that (if the Borrower shall so determine) any Indebtedness Incurred pursuant to Subsection 8.1(b)(xiii) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Subsection 8.1(a) from and after the first date on which the Borrower or any Restricted Subsidiary could have Incurred such Indebtedness under Subsection 8.1(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under Subsection 8.1(a), the Borrower, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under Subsection 8.1(a) and the remainder of such Indebtedness as having been Incurred under Subsection 8.1(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of letters Indebtedness outstanding under any subclause of credit Subsection 8.1(b), including for purposes of any determination of the “Maximum Incremental Facilities Amount”, shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness and (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred in reliance on a basket measured by reference to a percentage of Consolidated Total Assets at the time of Incurrence, and such refinancing would cause the percentage of Consolidated Total Assets restriction to be exceeded if calculated based on the Consolidated Total Assets on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or other credit support provided payable in connection with such refinancing. Notwithstanding anything herein to the contrary, Indebtedness Incurred by the Company Borrower on the Closing Date under this Agreement or the First Lien Credit Agreement shall be classified as Incurred under Subsection 8.1(b), and its Restricted Subsidiaries not under Subsection 8.1(a).
(d) For purposes of determining compliance with any dollar denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the ordinary course dollar equivalent principal amount of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;Indebte
Appears in 1 contract
Sources: Second Lien Credit Agreement (Atkore International Group Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, createCreate, issue, incur, assume, guarantee or otherwise become liable in any manner become directly or indirectly liable for the payment respect of or otherwise incursuffer to exist any Indebtedness, contingently or otherwise except:
(collectively, "incur"), a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness (including of the Borrower to any Acquired Indebtedness), unless such Indebtedness is incurred by Restricted Subsidiary and of any Subsidiary Guarantor to the Company Borrower or any Guarantor or constitutes Acquired other Restricted Subsidiary;
(c) Indebtedness secured by Liens permitted by Section 7.3(g); provided that the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of a Restricted Subsidiary andsuch Indebtedness, with the financial covenants contained in each case, Section 7.1Financial Covenants recomputed as at the Company's Consolidated Fixed Charge Coverage Ratio for last day of the most recent four full recently ended fiscal quarters quarter of the Borrower and its Restricted Subsidiaries for which financial statements are available immediately preceding the incurrence of as if such Indebtedness taken as one had been incurred on the first day of each relevant period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of for testing such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000compliance;
(iid) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries money indebtedness in an aggregate principal amount not to exceed the greater of (x) $90,000,000 10,000,000 and (y) 15% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at any one time; time outstanding;
(xiiie) Indebtedness outstanding on the Closing Date and listed on Schedule 7.2(e) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof);
(f) guarantees made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries of obligations of the Borrower or any Subsidiary Guarantorof its Restricted Subsidiaries;
(g) Indebtedness with respect to letters of credit (other than Letters of Credit), in each case, obtained in the ordinary course of business in an aggregate principal amount for all such letters of credit not to exceed $2,000,0005,000,000 at any time outstanding;
(h) Indebtedness in respect of letters of credit Permitted First Priority Refinancing Debt, Permitted Junior Lien Refinancing Debt, Permitted Unsecured Refinancing Debt and Permitted Other Indebtedness or other credit support provided permitted refinancings thereof to the extent that the Net Cash Proceeds therefrom are applied to the prepayment of the Trance A Loans (if required by the Company and terms of this Agreement at the time incurred) in accordance with Section 2.12(a).
(i) Indebtedness in respect of Comerica Letters of Creditguarantees made by the Borrower or any of its Restricted Subsidiaries in the ordinary course of business in respect of any obligations of any Foreign Subsidiary or CFC Holding Company under any commercial customer contracts or leases; provided that the aggregate principal amount of Indebtedness subject to all such guarantees shall not exceed $20,000,000 at any time outstanding;
(j) Indebtedness of any Restricted Subsidiary that is not a Loan Party to any other Restricted Subsidiary that is not a Loan Party;
(k) Indebtedness of any Foreign Subsidiary or CFC Holding Company to the Borrower or any other Restricted Subsidiary (so long as no Default or Event of Default shall have occurred and be continuing at the time of the incurrence of such Indebtedness); provided that (x) the requirements of Section 6.9 are satisfied and (y) the aggregate principal amount of such Indebtedness at any time outstanding shall not exceed the greater of (x) $2,500,00015,000,000 and (y) 2.525% of Consolidated EBITDA; and provided, further, that any Indebtedness permitted by this Section 7.2(k) shall be evidenced by a note or similar instrument and pledged in accordance with Section 6.9 and the Guarantee and Collateral Agreement;
(i) Permitted Unsecured Indebtedness; provided that (xi) at the time of, and after giving effect to, the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing and (yii) the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1(a), in each case recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) any guarantee by any Restricted Subsidiary in respect of any Permitted Unsecured Indebtedness; provided, further, that (x) no Subsidiary that is not a Loan Party shall guarantee any Permitted Unsecured Indebtedness and (y) any such guarantee in respect of Permitted Unsecured Indebtedness shall be unsecured;
(m) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations and working capital adjustments), or payment obligations in respect of any non-compete, consulting or similar arrangements, in each case incurred in connection with any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated on or prior to the Closing Date (including the Acquisition);
(i) Permitted Subordinated Indebtedness; provided that the Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness, with the financial covenant contained in Section 7.1(a), recomputed on a Pro Forma Basis as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of such period and (ii) any guarantee by any Restricted Subsidiary in respect of any Permitted Subordinated Indebtedness; provided, further, that (x) no Subsidiary that is not a Loan Party shall guarantee any Permitted Subordinated Indebtedness and (y) any such guarantee shall be subordinated to the prior payment in full of the Obligations on the same basis as the related Permitted Subordinated Indebtedness;
(o) (i) unsecured Indebtedness not otherwise permitted by this Section 7.2 in an aggregate principal amount not to exceed the greater of (x) $10,000,00020,000,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) and (ii) Indebtedness not otherwise permitted by this Section 7.2 in an aggregate principal amount not to exceed the greater of (x) $3,000,000 and (y) 515% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis); and
(p) (i) obligations under or in respect of interest rate Hedging Agreements up to an aggregate notional principal amount not to exceed at any time an amount equal to the Commitments of all the Lenders in the aggregate at such letters time, (ii) obligations owing under other Hedging Agreements entered into in order to manage existing or anticipated exchange rate or commodity price risks and not for speculative purposes and (iii) obligations owing with respect to cash management services, netting services, overdraft protections, automated clearinghouse arrangements and similar transactions and otherwise in connection with deposit accounts; and
(q) Indebtedness of credit the Borrower and the Restricted Subsidiaries assumed or incurred in connection with Permitted Acquisitions so long asprovided that subject to the Borrower’s right to make an LCT Election with respect to any Limited Condition Transaction, in which case Section 1.3(b) shall apply, (i) if the aggregate principal amount of Indebtedness assumed or incurred under this clause exceeds $5,000,000,Borrower shall be in compliance, on a Pro Forma Basis after giving effect to the assumption or incurrence of such Indebtedness and such Permitted Acquisition on a Pro Forma Basis as of the last day of the most recent Test Period have been delivered, the Borrower shall be in compliance, on a Pro Forma Basis with the financial covenant contained in Section 7.1(a), in each case, with the Financial Covenants recomputed as at the last day of the most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries for which financial statements are supported available as if such Indebtedness had been incurred on the first day of sucheach relevant period for testing such compliance, and (ii) before and after giving effect thereto , no Event of Default shall have occurred and be continuing, and (iii)provided, further, that any suchsecured Indebtedness shall be unsecured or secured only by letters a mortgage, purchase money security interest, Capital Lease Obligation or similar arrangement on the Property acquiredof the Borrower and its restricted Subsidiaries assumed in connection with such Permitted Acquisition (and any ascensions thereto or improvements thereon), and no Lien shall extend to cover any other Property of credit the Borrower or other credit support issued or provided any Subsidiary GuarantorAcquisitions shall otherwise be permitted under the Credit Agreement;Section 7.3.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incurthat the Borrower or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, assumeafter giving effect to the Incurrence thereof, guarantee or otherwise in any manner become directly or indirectly liable for the payment Consolidated Coverage Ratio of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless the Borrower would be greater than 1.75:1.00 if such Indebtedness is incurred by the Company Incurred on or prior to December 1, 2001 or 2.00:1.00 if such Indebtedness is Incurred thereafter; and NAVL or any Senior Subordinated Note Guarantor may Incur Indebtedness if, on the date of Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, (x) the Consolidated Coverage Ratio of NAVL would be greater than 2.00:1.00 if such Indebtedness is Incurred on or constitutes Acquired prior to December 1, 2001 or 2.25:1.00 if such Indebtedness is Incurred thereafter and (y) the aggregate principal amount of Indebtedness of the Borrower then outstanding and incurred after the Issue Date (that is not Indebtedness of NAVL or any Restricted Subsidiary, or a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence Guarantee of any such Indebtedness taken as one period is at least equal to or greater than 2.00:1Indebtedness) does not exceed $50.0 million.
(b) Notwithstanding the foregoingforegoing paragraph (a) of this Section 6.5, the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness Incurred pursuant to Credit Facilities (including but not limited to in respect of letters of credit or bankers' acceptances issued or created thereunder) and (without limiting the foregoing) any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding (giving effect to any refinancing thereof) not exceeding in the aggregate the amount equal to the sum of (x) $475.0 million and (y) the aggregate amount by which the Borrowing Base determined as of the Company date of such Incurrence exceeds $245.0 million (plus in the case of any refinancing of any Credit Facility or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing) less the aggregate principal amount of Indebtedness Incurred pursuant to this clause (b)(i) under the Company's Credit Agreement Facilities (including or any refinancing thereof) that is permanently repaid pursuant to Section 6.8;
(as defined belowii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Borrower or any Restricted Subsidiary to any Restricted Subsidiary; provided, that any subsequent issuance or transfer of any Capital Stock of such IndebtednessRestricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof,
(iii) Indebtedness represented by the Loan, the Senior Subordinated Notes and the Senior Subordinated Note Guarantees, any Indebtedness (other than the Indebtedness described in clauses (i) or (ii) above) outstanding on the Issue Date any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iii) or paragraph (a) of this Section 6.5;
(iv) Purchase Money Obligations and Capitalized Lease Obligations of NAVL and its Restricted Subsidiaries, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any one time outstanding not (giving effect to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect refinancing thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess exceeding an amount equal to the greater of (x) $40,000,000 35.0 million and (by) the aggregate amount 5% of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness"Consolidated Tangible Assets;
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided any Person that is assumed by NAVL or any Indebtedness of the Company owing to a Restricted Subsidiary that in connection with its acquisition of assets from such Person or any Affiliate thereof or is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture issued and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration outstanding on or otherwise) prior to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that date on which such Person was acquired by NAVL or any disposition, pledge Restricted Subsidiary or transfer of merged or consolidated with or into any such Indebtedness to a Person Restricted Subsidiary (other than a dispositionIndebtedness Incurred to finance, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence otherwise in connection with, such acquisition), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, NAVL could Incur at least $1.00 of additional Indebtedness by the Company or other obligor not permitted by pursuant to paragraph (a) above of this clause (v)Section 6.5; and any Refinancing Indebtedness with respect to any such Indebtedness;
(vi) Indebtedness of a (A) Guarantees by the Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Section 6.5), or (B) shall be deemed without limiting Section 6.10, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (viSection 6.5);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations Indebtedness of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company Borrower or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against fluctuations in interest rates insufficient funds, provided that such Indebtedness is extinguished within five Business Days of its incurrence, or (B) consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business business, assets or assets of a Restricted SubsidiaryPerson (including pursuant to the Allied Acquisition);
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiiviii) Indebtedness of the Sytner Group plc and Borrower or any Restricted Subsidiary in respect of its Subsidiaries (A) letters of credit, bankers' acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers' compensation statutes), or (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, or (C) Hedging Obligations entered into for bona fide hedging purposes in the ordinary course of business, (D) Management Guarantees, (E) Agent Guarantees in an aggregate principal amount not to exceed exceeding $90,000,000 10.0 million outstanding at any one time; , or (xiiiF) obligations in respect the financing of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries insurance premiums in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreementbusiness;
Appears in 1 contract
Sources: Loan Agreement (Sirva Inc)
Limitation on Indebtedness. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume, guarantee or otherwise in Incur any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing Company or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00; provided further, however, that the amount shall of Indebtedness that may be reduced by (a) the U.S. dollar equivalent of any loan notes referred Incurred pursuant to in clause (xi) of this Section 1008(b4.03(a) by Restricted Subsidiaries that are not collateralized by cash in excess Subsidiary Guarantors shall not exceed an amount at any time outstanding equal to the greater of $40,000,000 50 million and 2.5% of Consolidated Total Assets.
(b) Notwithstanding Section 4.03(a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to any Credit Facility (including in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $700 million, plus (B) the amount equal to the greater of (x) $700 million and (y) an amount equal to (1) the Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Restricted Subsidiaries and then outstanding pursuant to Section 4.03(b)(ix), plus (C) in the event of any refinancing of any such Indebtedness, the aggregate amount of Indebtedness fees, underwriting discounts, premiums and other costs and expenses incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000connection with all such refinancings;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company or (B) of the Company or any Restricted Subsidiary under to any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note that, in the form attached as Annex A to case of this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable Section 4.03(b)(ii), (whether at Stated Maturity, acceleration or otherwisex) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to a Person (other than a disposition, pledge or transfer to be a Restricted Subsidiary) shall be deemed to be an incurrence Subsidiary or any other subsequent transfer of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer except to the Company or a Restricted Subsidiary) shall be deemed to be deemed, in each case, an incurrence Incurrence of such Indebtedness by the obligor issuer thereof not permitted by this clause Section 4.03(b)(ii), (viy) if the Company is the obligor on such Indebtedness and the holder of such Indebtedness is not a Subsidiary Guarantor, such Indebtedness is expressly subordinated in right of payment to all obligations with respect to the Securities and (z) if a Subsidiary Guarantor is the obligor on such Indebtedness and the holder of such Indebtedness is neither the Company nor a Subsidiary Guarantor, such Indebtedness is expressly subordinated in right of payment to all obligations of such Subsidiary Guarantor with respect to its Subsidiary Guarantee; provided further, that nothing in the foregoing clauses (y) or (z) shall prohibit the periodic payment of interest thereon or the repayment of such Indebtedness at maturity or otherwise in compliance with the terms of this Indenture;
(iii) Indebtedness represented by the Securities (not including any Additional Securities) and the Subsidiary Guarantees, any Indebtedness (other than the Indebtedness Incurred pursuant to Sections 4.03(b)(i) or 4.03(b)(ii)) outstanding on the Issue Date and any Refinancing Indebtedness Incurred in respect of any Indebtedness Incurred pursuant to this Section 4.03(b)(iii) or Section 4.03(a);
(viiiv) guarantees Purchase Money Obligations and Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Indebtedness at any Restricted Subsidiary made in accordance with time outstanding pursuant to this Section 4.03(b)(iv) shall not exceed an amount equal to the provisions greater of Section 1013$100 million and 5.0% of Consolidated Total Assets;
(viiiv) obligations Indebtedness consisting of accommodation guarantees for the benefit of trade creditors of the Company or any Guarantor entered into in the ordinary course of business its Restricted Subsidiaries;
(avi) pursuant to Interest Rate Agreements designed to protect (A) Guarantees by the Company or any Restricted Subsidiary against fluctuations of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in interest rates in respect violation of this Section 4.03), or (B) without limiting Section 4.11, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as long as such obligations do not exceed the aggregate principal amount case may be, in violation of such Indebtedness then outstanding, this Section 4.03);
(b) under any Currency Hedging Agreements, relating to (ivii) Indebtedness of the Company or any Restricted Subsidiary and/or (iiA) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds; provided that such Indebtedness is extinguished within five Business Days of its Incurrence, or (B) consisting of guarantees, indemnities, obligations to in respect of earnouts or other purchase price adjustments, or sell similar obligations, Incurred in connection with the acquisition or disposition of any business, assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofPerson;
(ixviii) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations in respect of (A) letters of credit, bankers’ acceptances or other - 118 - Indebtedness incurred similar instruments or assumed obligations issued, or relating to liabilities or obligations Incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal, bid or performance bonds, workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations Incurred, in the acquisition ordinary course of business, (C) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes), (D) Management Guarantees, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or development any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement or (H) Bank Products Obligations;
(ix) Indebtedness (A) of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing a Special Purpose Subsidiary secured by a Lien on all or any part of the purchase price assets disposed of in, or cost of construction otherwise Incurred in connection with, a Financing Disposition or improvement of property used (B) otherwise Incurred in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any timeconnection with a Special Purpose Financing; provided that (x) such Indebtedness is not recourse to the principal amount of Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (y) in the event such Indebtedness permitted under this clause shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (ix) did not in each case other than with respect to Special Purpose Financing Undertakings), such Indebtedness shall be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of incurrence exceed the Fair Market Valueother provisions of this Section 4.03 for so long as such Indebtedness shall be so recourse and (z) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (x), as determined by the Company may classify such Indebtedness in good faith, of the acquired whole or constructed asset or improvement so financedin part as Incurred under this Section 4.03(b)(ix);
(x) obligations arising from agreements by Indebtedness of (A) the Company or a any Restricted Subsidiary Incurred to provide for indemnificationfinance or refinance, customary purchase price closing adjustmentsor otherwise Incurred (including as consideration) in connection with, earn-outs any acquisition of assets (including Capital Stock), business or other similar obligationsPerson, in each caseor any merger or consolidation of any Person with or into the Company or any Restricted Subsidiary, incurred or (B) any Person that is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the acquisition date of such acquisition, merger or disposition consolidation, on a pro forma basis after giving effect thereto, either (x) the Company would be permitted to Incur at least an additional $1.00 of Indebtedness pursuant to Section 4.03(a) or (y) the Consolidated Coverage Ratio of the Company would equal or be greater than the Consolidated Coverage Ratio of the Company immediately prior to giving effect thereto; and any business or assets of a Restricted SubsidiaryRefinancing Indebtedness with respect to any Indebtedness Incurred pursuant to this Section 4.03(b)(x);
(xi) loan notes, if any, issued to a holder Indebtedness issuable upon the conversion or exchange of the shares of Capital Disqualified Stock of Sytner Group plc issued in connection accordance with the tender offer for all of such Capital Stock;Section 4.03(a), and any Refinancing Indebtedness with respect thereto; and
(xii) Indebtedness of the Sytner Group plc and Company or any of its Subsidiaries Restricted Subsidiary in an aggregate principal amount, together with all other Indebtedness Incurred pursuant to this Section 4.03(b)(xii) and then outstanding, not exceeding an amount not equal to exceed the greater of $90,000,000 100 million and 5.5% of Consolidated Total Assets.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 4.03:
(i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 4.03) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness;
(ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 4.03(b), the Company, in its sole discretion, shall classify or reclassify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Section 4.03(b) (including in part under one such clause and in part under another such clause); provided that (if the Company shall so determine) any Indebtedness Incurred pursuant to Section 4.03(b)(xii) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Section 4.03(a) from and after the first date on which the Company or any Restricted Subsidiary could have Incurred such Indebtedness under Section 4.03(a) without reliance on Section 4.03(b)(xii);
(iii) in the event that Indebtedness could be Incurred in part under Section 4.03(a), the Company, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under Section 4.03(a) and thereafter the remainder of such Indebtedness as having been Incurred under Section 4.03(b);
(iv) the amount of Indebtedness issued at any one time; (xiii) obligations a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; and
(v) the principal amount of letters Indebtedness outstanding under any clause of credit Section 4.03(b) shall be determined on a pro forma basis giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness. Notwithstanding anything herein to the contrary, Indebtedness outstanding or other credit support provided otherwise Incurred by the Company on the Issue Date under the Senior Credit Facilities shall be classified as Incurred under Section 4.03(b)(i), and its Restricted Subsidiaries not under Section 4.03(a).
(d) For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the U.S. Dollar Equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the ordinary course case of business term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness; provided that (i) the obligations under U.S. Dollar Equivalent principal amount of any such letters Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, (ii) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), 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 credit are supported by letters such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of credit such Refinancing Indebtedness does not exceed (A) the outstanding or committed principal amount (whichever is higher) of such Indebtedness being refinanced plus (B) the aggregate amount of fees, underwriting discounts, premiums and other credit support issued or provided costs and expenses incurred in connection with such refinancing and (iii) the U.S. Dollar Equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to any Senior Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, (A) the Issue Date, (B) any date on which any of the respective commitments under the applicable Senior Credit Agreement;Facility shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (C) the date of such Incurrence. The principal amount of any Indebtedness Incurred 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 respective Indebtedness is denominated in effect on the date of such refinancing.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will Mediacom Broadband LLC shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurindirectly, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness)) or issue any Disqualified Equity Interests except for Permitted Indebtedness; provided, unless such Indebtedness is incurred by the Company however, that Mediacom Broadband LLC or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness or issue Disqualified Equity Interests if, in each caseat the time of and immediately after giving pro forma effect to such Incurrence of Indebtedness or issuance of Disqualified Equity Interests and the application of the proceeds therefrom, the Company's Consolidated Fixed Charge Coverage Debt to Operating Cash Flow Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be less than or equal to or greater than 2.00:1.
(b) Notwithstanding 8.5 to 1.0. The limitations contained in the foregoing, the Company and, foregoing paragraph shall not apply to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Incurrence of any of the following (collectively, the "“Permitted Indebtedness"):”), each of which shall be given independent effect:
(a) Indebtedness under the Initial Notes issued on the date of this Indenture, the Exchange Notes issued in exchange for such Initial Notes and this Indenture (other than Additional Notes);
(b) Indebtedness of and Disqualified Equity Interests in Mediacom Broadband LLC and the Restricted Subsidiaries outstanding on March 17, 2014 other than Indebtedness described in clause (a), (c), (d) or (f) of this Section 1008;
(c) (i) Indebtedness of the Company Restricted Subsidiaries under the Company's Subsidiary Credit Agreement Facility (including including, without limitation, any refinancing thereof), and (as defined belowii) Indebtedness of the Restricted Subsidiaries (including, without limitation, any refinancing thereof) if (solely for purposes of this clause (ii)), at the time of and immediately after giving pro forma effect to the Incurrence of such Indebtedness) in an aggregate principal amount at any one time outstanding not Indebtedness and the application of the proceeds therefrom, the Debt to exceed $920,000,000 in any case under the Credit Agreement Operating Cash Flow Ratio would be less than or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereofequal to 6.5 to 1.0; provided, however, that for purposes of the foregoing amount calculation of such Ratio, the term “Consolidated Total Indebtedness” shall be reduced by (a) refer only to the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Consolidated Total Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
Subsidiaries (iii) including, without limitation, Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations Incurred under the Securities Subsidiary Credit Facility and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such the Future Subsidiary Credit Facilities but not including Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made payable solely to Mediacom Broadband LLC that qualifies as “Affiliate Subordinated Indebtedness” (as defined in accordance with the provisions Subsidiary Credit Facility in effect as of Section 1013;
(viiiMarch 17, 2014)) obligations outstanding as of the Company or any Guarantor entered into Determination Date (as defined in the ordinary course definition of business (aterm “Debt to Operating Cash Flow Ratio” in Section 101) pursuant and the term “Operating Cash Flow” shall refer only to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness Operating Cash Flow of the Company or any Restricted Subsidiary Subsidiaries for the related Measurement Period (as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred defined in the ordinary course definition of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations term “Debt to Operating Cash Flow Ratio” in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofSection 101);
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Sources: Indenture (Mediacom Broadband Corp)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume, guarantee or otherwise in Incur any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness of Incurred by the Company under Borrower and the Company's Credit Guarantors pursuant to this Agreement and the other Loan Documents (including Incremental Term Loans, Extended Term Loans, Specified Refinancing Term Loans), Permitted Debt Exchange Notes, Additional Obligations, Rollover Indebtedness and Refinancing Indebtedness in each case thereof, plus, without duplication of incremental amounts included in the definition of “Refinancing Indebtedness”, the aggregate amount of all fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (II) Indebtedness incurred pursuant to the Senior ABL Facility and any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors Refinancing Indebtedness in respect thereof; provided, however, provided that the foregoing maximum principal amount for all such Indebtedness Incurred pursuant to this clause (II) shall be reduced by not, at any time outstanding, exceed the sum of (aA) the U.S. dollar equivalent greater of (x) $300,000,000 and (y) the Borrowing Base less the aggregate principal amount of Indebtedness Incurred by Special Purposes Entities that are Domestic Subsidiaries and then outstanding pursuant to Section 8.1(b)(ix), plus (B) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness”, in the event of any loan notes referred to in clause (xi) refinancing of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) any such Indebtedness, the aggregate amount of Indebtedness incurred pursuant to clause fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower, or (B) of the Company Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) Indebtedness of represented by (A) [reserved], (B) any Indebtedness (other than the Company Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities or the Exchange SecuritiesIndebtedness described in this Subsection 8.1(b)(iii);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the acquisition of Capital Stock of any Person at any time outstanding pursuant to this clause shall not exceed an amount equal to the greater of $25,000,000 and 25.00% of Consolidated EBITDA for the most recently ended fiscal quarter for which consolidated financial statements of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness"Borrower are available;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of the Borrower or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business or (aB) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business business, assets or assets of a Restricted SubsidiaryPerson;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiiviii) Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations Restricted Subsidiary in respect of (A) letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) in respect of industrial revenue bonds or other tax advantaged financings issued through a Governmental Authority, (F) the financing of insurance premiums in the ordinary course of business, (G) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (H) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (I) Junior Capital in an amount not to exceed $50,000,000 in the aggregate at any one time outstanding, or (J) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse, and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) the Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger, consolidation or amalgamation of any Person with or into the Borrower or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger, consolidation or amalgamation); provided that on the date of such acquisition, merger, consolidation or amalgamation, after giving effect thereto, (1)(x) if such Indebtedness is unsecured, the Borrower would have a Consolidated Total Leverage Ratio equal to or less than 3.70:1.00 or (y) if such Indebtedness is secured on a pari passu or junior priority basis, the Borrower would have a Consolidated Secured Leverage Ratio equal to or less than 3.70:1.00, (2) if secured by a Lien on a pari passu or junior priority basis on the Collateral, the Borrower shall have caused to be executed a customary intercreditor agreement, (3) the maturity date and the weighted average life to maturity of such Indebtedness shall be no earlier than or shorter than, as the case may be, the Initial Term Loan Maturity Date or the remaining weighted average life to maturity of the Initial Term Loans, as applicable (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date than the Initial Term Loan Maturity Date or a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loans, as applicable) and (4) the interest rate margins (subject to clause (3) above) and amortization schedule applicable such Indebtedness shall be determined by the Borrower and the applicable lenders; provided that in the event that the Yield for any term loans Incurred under this clause (x) and secured on a pari passu basis by the Collateral is higher than the Yield for the Initial Term Loans by more than 50 basis points, then the Applicable Margin for the Initial Term Loans shall be increased to the extent necessary so that the Yield for the Initial Term Loans is equal to the Yield for such Indebtedness minus 50 basis points; provided, further, that the aggregate principal amount of Indebtedness of which the primary obligor or a guarantor is a Restricted Subsidiary that is not a Loan Party outstanding on this clause (x) shall not exceed, at the time of incurrence thereof and after giving pro forma effect thereto, the greater of $50,000,000 and 50.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available. If, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xii) additional Indebtedness so long as, on a pro forma basis, Consolidated Secured Leverage Ratio would be less than or equal to 3.70:1.00; provided, that the aggregate principal amount of Indebtedness of which the primary obligor or a guarantor is a Restricted Subsidiary that is not a Loan Party outstanding on this clause (x) shall not exceed, at the time of incurrence thereof and after giving pro forma effect thereto, the greater of $50,000,000 and 50.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available;
(xiii) Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $60,000,000 and 60.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available;
(xiv) Indebtedness of the Borrower or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger, consolidation or amalgamation of any Person with or into the Borrower or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $25,000,000 and 25.00% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available;
(xv) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding the greater of (x) $20,000,000 and (y) an amount equal to (A) the Foreign Borrowing Base less (B) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) plus (C) in the event of any refinancing of any Indebtedness Incurred under this clause (xv), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing;
(xvi) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate principal amount of Indebtedness incurred or guaranteed pursuant to this clause (xvi) shall not exceed, in the aggregate, the greater of (i) $7,500,000 and (ii) 7.50% of Consolidated EBITDA for the most recently ended four-fiscal quarter period for which consolidated financial statements of the Borrower are available; and
(xvii) without duplication, all premiums (if any, including tender premiums), defeasance costs, interest (including post petition interest), fees, expenses and charges and additional or contingent interest on obligations described in clauses (ii) through (xvi) of this Subsection 8.1.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Subsection 8.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under such letters this Subsection 8.1) arising under any Guarantee, Lien or letter of credit are supported by letters of credit credit, bankers’ acceptance or other credit support issued similar instrument or provided obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness Incurred pursuant to Subsection 8.1(b) meets the criteria of more than one of the types of Indebtedness described in Subsection 8.1(b), the Borrower, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Subsection 8.1(b) (including in part under the Credit Agreement;one such clause and in part under another such
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Company and any Restricted Subsidiary may Incur Indebtedness if on the date of such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds therefrom):
1) the Consolidated Net Leverage Ratio for the Company and its Restricted Subsidiaries would have been no greater than 3.3:1; or
2) solely to the extent the relevant Indebtedness is Secured Indebtedness, the Consolidated Senior Secured Net Leverage Ratio for the Company and its Restricted Subsidiaries would have been no greater than 3.1:1.
b) Paragraph (a) above will not prohibit the U.S. dollar equivalent Incurrence of the following Indebtedness:
1) Indebtedness Incurred pursuant to any Credit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), and Guarantees in respect of such Indebtedness in a maximum aggregate principal amount at any time outstanding not exceeding (i) £270,000,000, plus (ii) the greater of £31,360,000 and 40% of Consolidated EBITDA (measured at the time of incurrence) (the “Super Senior Debt Basket”), plus (ii) in the case of any loan notes referred to in refinancing of any Indebtedness permitted under this clause (xi1) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing;
2) (A) Guarantees by the Company or any Restricted Subsidiary of Indebtedness incurred of the Company or any Restricted Subsidiary, in each case, so long as the Incurrence of such Indebtedness is permitted under the terms of this Agreement (other than pursuant to clause this sub-paragraph 2)); provided that, if the Indebtedness being guaranteed is subordinated in right of payment to the Facilities, then the guarantee must be subordinated in right of payment to the same extent as the Indebtedness guaranteed; or (xiiB) without limiting Section 6 (Limitation on Liens), Indebtedness arising by reason of this Section 1008(b) in excess of $20,000,000;
(ii) any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary so long as the Incurrence of such Indebtedness is permitted under any Inventory Facilitythe terms of this Agreement (other than pursuant to this sub-paragraph 2));
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v3) Indebtedness of the Company owing to a Restricted Subsidiary; provided that and held by any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; , provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;that:
Appears in 1 contract
Sources: Senior Facilities Agreement (Inspired Entertainment, Inc.)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.any Loan Document;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including Borrower to any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, Subsidiary and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred Wholly Owned Subsidiary Guarantor to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiic) Indebtedness of the Sytner Group plc and any of its Subsidiaries (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 8.3(g) in an aggregate principal amount not to exceed $90,000,000 5,000,000 at any one time; time outstanding;
(xiiid) obligations in respect of letters of credit or other credit support provided by Indebtedness outstanding on the Company date hereof and its Restricted Subsidiaries listed on Schedule 8.2(d);
(e) Guarantee Obligations made in the ordinary course of business by the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor; and
(f) Indebtedness in respect of the Borrower and its Subsidiaries secured by fee-owned or leasehold real property of the Borrower and its Subsidiaries which is not subject to a Mortgage or owned by a Loan Party (excluding any Recourse Indebtedness), including the CMBS Financing and any extensions or renewals or restructurings (including any restructuring that may be required by the lender thereunder) thereof and of the Indebtedness permitted by Section 8.2(d), provided that that, with respect to any such Indebtedness (other than Indebtedness permitted by Section 8.2(d) and the obligations under CMBS Financing, in each case, as in effect on the date hereof) (x) such letters Indebtedness shall not mature prior to April 27, 2009, (y) none of credit are supported by letters the REIT, the Borrower or any of credit or other its Subsidiaries provides credit support issued of any kind (including any undertaking, agreement or provided under instrument that would constitute Indebtedness) or is directly or indirectly liable (as guarantor or otherwise), other than as primary obligor or, in the Credit Agreement;case of the Borrower as guarantor on terms no less favorable than those set forth on Schedule 8.2(f), and (z) as to which the lenders thereunder will not have any recourse to the Capital Stock or assets of the Borrower, the Borrower or any of its Subsidiaries other than the asset financed by such Indebtedness, additions, accessions and improvements thereto and proceeds thereof and, in the case of the Borrower, recourse on terms no less favorable than those set forth on Schedule 8.2(f).
Appears in 1 contract
Sources: Credit Agreement (U-Store-It Trust)
Limitation on Indebtedness. (a) The Company will Restricted Parent Guarantor shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) Issuer, the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 Restricted Parent Guarantor and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
may Incur Indebtedness (iii) Indebtedness including Acquired Indebtedness), if on the date of such Incurrence and after giving pro forma effect thereto (including pro forma application of the Company pursuant proceeds thereof), the Fixed Charge Coverage Ratio for the Restricted Parent Guarantor and its Restricted Subsidiaries is greater than 2.00 to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness1.00; provided, further, that Non-Guarantors may not Incur Indebtedness if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom) and any dispositionIncurrence of Indebtedness by a Non-Guarantor pursuant to clause (5) of Section 3.2(b), pledge more than an aggregate of the greater of (a) $25 million and (b) 1.5% of Total Assets of Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph and clause (5) of Section 3.2(b).
(b) Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness:
(1) Indebtedness Incurred pursuant to any Credit Facility (including letters of credit or transfer of bankers’ acceptances issued or created under any such Credit Facility), and any Refinancing Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence in respect thereof and Guarantees in respect of such Indebtedness by in a maximum aggregate principal amount at any time outstanding not exceeding (i) $475 million, plus (ii) in the Company or other obligor not case of any refinancing of any Indebtedness permitted by under this clause (v)or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing;
(vi2) Guarantees by the Restricted Parent Guarantor or any Restricted Subsidiary of Indebtedness of the Issuer, the Restricted Parent Guarantor or any Restricted Subsidiary so long as the Incurrence of such Indebtedness is permitted under the terms of this Indenture;
(3) Indebtedness of the Restricted Parent Guarantor owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Parent Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Currency Hedging Agreements do not increase Indebtedness being beneficially held by a Person other than the Indebtedness Restricted Parent Guarantor or a Restricted Subsidiary of the Restricted Parent Guarantor; and
(ii) any sale or other obligations transfer of any such Indebtedness to a Person other than the Company Restricted Parent Guarantor or a Restricted Subsidiary, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Restricted Parent Guarantor or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (i) the Notes (other than any Additional Notes), including any Guarantee thereof, including the PIK Notes issued as PIK Interest in accordance with this Indenture and any Guarantee thereof, (ii) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1), (3) and (4)(e)) outstanding on the Issue Date, (iii) Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause or clauses (5) or (10) of this paragraph or Incurred pursuant to the first paragraph of this Section 3.2, (iv) Management Advances and (v) the Senior Priority Notes (including any guarantees thereof, paid-in-kind interest thereon and excluding for the avoidance of doubt any additional notes related thereto (other than additional notes issued in respect of paid-in-kind interest));
(5) Indebtedness of (x) the Restricted Parent Guarantor or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates Incurred or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements issued to finance an acquisition or (cy) under any Commodity Price Protection Agreements which do not increase Persons that are acquired by the amount of Indebtedness or other obligations of the Company Restricted Parent Guarantor or any Restricted Subsidiaries or merged into or consolidated with the Restricted Parent Guarantor or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that after giving effect to such acquisition, merger or consolidation, either
(i) the Restricted Parent Guarantor would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 3.2(a), or
(ii) the Fixed Charge Coverage Ratio of the Restricted Parent Guarantor and the Restricted Subsidiaries would not be lower than immediately prior to such acquisition, merger or consolidation; provided, further, that any Indebtedness Incurred or issued by or otherwise acquired by or in respect of a Non-Guarantor pursuant to this clause (5), after giving effect to such Incurrence (including a pro forma application of the net proceeds therefrom) and any Incurrence of Indebtedness by a Non-Guarantor pursuant to the first paragraph of this covenant, shall not exceed the greater of (a) $25 million and (b) 1.5% of Total Assets of Indebtedness of Non-Guarantors.
(6) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) (i) Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other than as a result Indebtedness Incurred pursuant to this clause and then outstanding, does not exceed the greater of fluctuations (i) $50 million and (ii) 3.0% of Total Assets at the time of Incurrence and any Refinancing Indebtedness in commodity prices respect thereof; and (ii) Indebtedness represented by Capitalized Lease Obligations or by reason of feesPurchase Money Obligations with respect to the lease, indemnities and compensation payable under such Commodity Price Protection Agreementspurchase, repair, and guarantees by Guarantors improvement to blast furnaces and any related equipment or components in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (ii) and then outstanding, does not exceed $150 million and any Refinancing Indebtedness in respect thereof;
(ix8) Indebtedness in respect of (i) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other - 118 - Indebtedness incurred tax or assumed in connection with the acquisition other guarantees or development of real other similar bonds, instruments or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; obligations and completion guarantees and warranties provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company Restricted Parent Guarantor or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business, (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of Incurrence; (iii) customer deposits and advance payments received in the ordinary course of business from customers for goods or services purchased in the ordinary course of business; (iv) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (v) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Restricted Parent Guarantor and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a Disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Restricted Parent Guarantor and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Restricted Parent Guarantor from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or otherwise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Restricted Parent Guarantor, in each case, subsequent to the Issue Date; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Restricted Parent Guarantor and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause to the extent the Restricted Parent Guarantor or any Restricted Subsidiary makes a Restricted Payment;
(xi11) loan notes[Reserved];
(12) Indebtedness consisting of promissory notes issued by the Restricted Parent Guarantor or any of its Subsidiaries to any current or former employee, if any, issued to a holder director or consultant of the shares Restricted Parent Guarantor any of its Subsidiaries or any Parent Entity (or permitted transferees, assigns, estates, or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital StockRestricted Parent Guarantor or any Parent Entity that is permitted by Section 3.3;
(xii13) Indebtedness of the Sytner Group plc Restricted Parent Guarantor or any Restricted Subsidiary consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business;
(14) (i) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause (14)(i) and then outstanding, will not exceed the greater of (a) $50 million and (b) 3.00% of Total Assets; and (ii) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause (14)(ii) and then outstanding, in the amount of $50 million; provided that for purposes of this subclause (ii) on the date of such Incurrence and after giving pro forma effect thereto, the Consolidated Total Leverage Ratio would be no greater than 3.00 to 1.00; and any of its Subsidiaries Refinancing Indebtedness thereof;
(15) Indebtedness Incurred by a Securitization Subsidiary in a Qualified Securitization Financing that is not recourse (except for Standard Securitization Undertakings) to the Restricted Parent Guarantor or any Restricted Subsidiary in an aggregate principal amount not to exceed $90,000,000 50 million at any time outstanding; and
(16) Permitted Shareholder Loans in an aggregate outstanding principal amount not to exceed $50 million.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:
(1) subject to Section 3.2(c), in the event that Indebtedness meets the criteria of more than one time; of the types of Indebtedness described in Section 3.2(a) and (xiiib), the Restricted Parent Guarantor, in their sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of the clauses of Section 3.2(a) or (b);
(2) subject to Section 3.2(c)(3), additionally, all or any portion of any item of Indebtedness may later be classified as having been Incurred pursuant to any type of Indebtedness described in Section 3.2(a) and (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification;
(3) all Indebtedness outstanding on the Issue Date under the Credit Agreement shall be deemed to have been incurred on the Issue Date under Section 3.2(b)(1) and may not be reclassified at any time pursuant to clause (1) or (2) of this Section 3.2(c);
(4) In the case of any Refinancing Indebtedness permitted under clause (7), (10), (11) or (14) of the second paragraph above or any portion thereof, such Indebtedness shall not include the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing and such Refinancing Indebtedness shall be deemed permitted thereunder, without duplication of amounts otherwise permitted;
(5) Guarantees of, or obligations in respect of letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the ordinary course determination of business provided a particular amount of Indebtedness shall not be included;
(6) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to clause (1), (7), (10), (11) or (14) of Section 3.2(b) or Section 3.2(a) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(7) the principal amount of any Disqualified Stock of the Restricted Parent Guarantor or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(8) Indebtedness permitted by this Section 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 3.2 permitting such Indebtedness; and
(9) the amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (ii) the principal amount of Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness.
(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in IFRS, will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2.
(e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Restricted Parent Guarantor as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 3.2, the Restricted Parent Guarantor shall be in default of this Section 3.2).
(f) Notwithstanding any other provision of this Section 3.2, the maximum amount of Indebtedness that the obligations under Restricted Parent Guarantor or a Restricted Subsidiary may Incur pursuant to this Section 3.2 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred 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 letters of credit are supported by letters of credit or other credit support issued or provided under Refinancing Indebtedness is denominated that is in effect on the Credit Agreement;date of
Appears in 1 contract
Sources: Indenture (Essar Steel Algoma Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issueCreate, incur, assume, guarantee assume or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise suffer to exist (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence to "Incur") any Indebtedness, except:
(a) Indebtedness of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.any Loan Document;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under Borrower to any Subsidiary and of any Wholly Owned Subsidiary Guarantor to the Company's Credit Agreement Borrower or any other Subsidiary;
(including any refinancing (as defined belowc) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreementpurchase money Indebtedness and Indebtedness secured by Liens permitted by Section 7.3(g), and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b7.2(c) in excess of shall not exceed $20,000,00025,000,000 at any one time outstanding;
(iid) Indebtedness Capital Lease Obligations, provided, that the aggregate principal amount of Capital Lease Obligations incurred pursuant to this Section 7.2(d) in any fiscal year of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness Borrower, when added to the aggregate amount of the Company other Capital Expenditures made during such fiscal year pursuant to Section 7.7(a), shall not exceed the Securities or the Exchange Securities and Indebtedness of any Guarantor amount permitted to be expended during such fiscal year pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (vSection 7.7(a);
(vie) Indebtedness of a Restricted Subsidiary owing to outstanding on the Company date hereof and listed on Schedule 7.2(e) and any refinancings, refundings, renewals or another Restricted Subsidiary; provided that extensions thereof (without any such Indebtedness is made pursuant to an intercompany note increase in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (viprincipal amount thereof);
(viif) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect by the Company Borrower or any Restricted of its Subsidiaries of obligations of any Wholly Owned Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to Guarantor;
(i) Indebtedness of the Company or any Restricted Subsidiary and/or Borrower in respect of the Senior Subordinated Notes in an aggregate principal amount not to exceed $400,000,000 and (ii) obligations to purchase or sell assets or properties, Guarantee Obligations of any Subsidiary Guarantor in each case, respect of such Indebtedness; 66 61
(h) Indebtedness of any Canadian Subsidiary incurred for working capital purposes in the ordinary course of business business, provided that (i) the U.S.$ equivalent (determined in good faith by the Borrower) of the Company or aggregate outstanding principal amount thereof (the "Canadian Subsidiary Equivalent Outstandings") shall not exceed $10,000,000 at any Restricted Subsidiary; providedone time and (ii) on the date of any incurrence thereof, howeverafter giving effect thereto, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations sum of the Company or any Restricted Canadian Subsidiary outstanding other than as a result Equivalent Outstandings and the Total Revolving Extensions of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do Credit shall not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofexceed $100,000,000;
(ixi) at any time after the Revolving Credit Commitments shall have been terminated (other than pursuant to Section 8), Indebtedness in respect of unsecured revolving lines of credit in an aggregate outstanding principal amount not exceeding $60,000,000 at any one time; and
(j) additional Indebtedness of the Company Borrower or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed $90,000,000 25,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Campfire Inc)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its the Restricted Subsidiaries to, to create, incur, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurliable, contingently or otherwise suffer to exist any Indebtedness, except:
(collectivelya) Indebtedness arising under (i) the Credit Documents, "incur"), including pursuant to Sections 2.14 and 2.15 hereof and any Credit Agreement Refinancing Indebtedness and (including ii) the Senior Notes Documents in an aggregate outstanding principal amount under this clause (ii) not to exceed $900,000,0001,300,000,000 and any Acquired Indebtedness), unless such Permitted Refinancing Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.respect thereof;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Indebtedness of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is made pursuant to an intercompany note in not a Subsidiary Guarantor shall (x) be evidenced by the form attached Intercompany Note or (y) otherwise be outstanding on the Effective Date so long as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness is evidenced by the Intercompany Note or otherwise subject to a Person (other than a disposition, pledge or transfer subordination terms substantially identical to the Company subordination terms set forth in Exhibit N within 60 days of the Effective Date or a Restricted Subsidiary) such later date as the Administrative Agent shall be deemed reasonably agree, in each case, to be an incurrence of such Indebtedness by the obligor not extent permitted by this clause Applicable Law and not giving rise to material adverse tax consequences, (vi)ii) any Restricted Subsidiary that is not a Subsidiary Guarantor owing to any other Restricted Subsidiary that is not a Subsidiary Guarantor and (iii) to the extent permitted by Section 10.5, any Restricted Subsidiary that is not a Subsidiary Guarantor owing to the Borrower or any Subsidiary Guarantor;
(viii) guarantees Indebtedness in respect of any Restricted Subsidiary made in accordance with the provisions bankers’ acceptance, bank guarantees, letter of Section 1013;
(viii) obligations of the Company credit, warehouse receipt or any Guarantor similar facilities entered into in the ordinary course of business (aincluding in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims) pursuant and (ii) Indebtedness supported by Letters of Credit in an amount not to Interest Rate Agreements designed to protect exceed the Company or Stated Amount of such Letters of Credit;
(d) Guarantee Obligations incurred by (i) any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company Borrower or any other Restricted Subsidiary that is permitted to be incurred under this Agreement and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, that is permitted to be incurred under this Agreement;
(be) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, Guarantee Obligations incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;of obligations to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners; 161 LPL – Conformed A&R Credit Agreement
(ixi) Indebtedness the proceeds of which are used to finance the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personalacquisition, movable or immovablelease, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction construction, repair, replacement, expansion or improvement of property used fixed or capital assets or otherwise issued or incurred in the business respect of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any timeCapital Expenditures; provided that (A) such Indebtedness is issued or incurred concurrently with or within 270 days after the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Valueapplicable acquisition, as determined by the Company in good faithlease, of the acquired or constructed asset construction, repair, replacement, expansion or improvement so financed;
and (xB) obligations arising from agreements by the Company such Indebtedness is not issued or a Restricted Subsidiary incurred to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of acquire Capital Stock of Sytner Group plc any Person and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness; provided that, after giving effect to the incurrence or issuance of any such Indebtedness, the Borrower shall be in connection compliance on a Pro Forma Basis with the tender offer for all covenants set forth in Sections 10.9 and 10.10 as of the most recently ended Test Period on or prior to the incurrence of any such Indebtedness, calculated on a Pro Forma Basis, as if such incurrence (and transaction) had occurred on the first day of such Capital StockTest Period;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00; provided, further, that the amount of Indebtedness that may be Incurred pursuant to this Subsection 8.1(a), by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of (x) $60,000,000 and (y) 6.0% of Consolidated Total Assets at any one time outstanding.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness Incurred by the Borrower and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (c) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof), (d) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and any Refinancing Indebtedness in respect thereof and (e) pursuant to any Letter of Credit Facility (and any Refinancing Indebtedness in respect thereof), in a maximum principal amount for all such Indebtedness at any time outstanding not exceeding in the Company under aggregate an amount equal to the Company's Credit Agreement sum of (A) $200,000,000, plus (B) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness”, in the event of any refinancing of any such Indebtedness (including with Specified Refinancing Indebtedness), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (II) Indebtedness Incurred by the Borrower and the Guarantors (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations, (c) constituting Rollover Indebtedness, (d) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and (e) pursuant to any refinancing (as defined below) Letter of such Indebtedness) Credit Facility, in an aggregate principal amount at any one time for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to exceed $920,000,000 in any case under clause (i) of the Credit Agreement or definition of “Maximum Incremental Facilities Amount”, treating Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect of letters Indebtedness Incurred in reliance on clause (i) of credit under the Credit Agreement, definition of “Maximum Incremental Facilities Amount” (and guarantees by Guarantors Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect thereof; providedof such Refinancing Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), however, that together with Refinancing Indebtedness in respect of the foregoing amount shall be reduced by Indebtedness described in subclauses (a), (b), (c), (d) the U.S. dollar equivalent of any loan notes referred to in clause and (xie) of this Section 1008(b) not collateralized by cash clause (II), plus, without duplication of incremental amounts included in excess the definition of $40,000,000 and “Refinancing Indebtedness”, in the event of any refinancing of such Indebtedness (b) including with Specified Refinancing Indebtedness), the aggregate amount of Indebtedness incurred pursuant to clause all fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower, or (B) of the Company Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) Indebtedness represented by (A) Obligations permitted to be Incurred by Subsection 8.1(b)(i) of the Company First Lien Credit Agreement (as in effect on the date hereof and whether or not the First Lien Credit Agreement is in effect), (B) any Indebtedness (other than the Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness described in this Subsection 8.1(b)(iii) or the Exchange SecuritiesSubsection 8.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person, at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $30,000,000 and not otherwise referred to in this definition 3.0% of "Permitted Indebtedness"Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of the Borrower or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of provided that such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred is extinguished in the ordinary course of business business), or (B) consisting of the Company or any Restricted Subsidiary; providedguarantees, howeverindemnities, that such Currency Hedging Agreements do not increase the Indebtedness obligations in respect of earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an amount not to exceed $60,000,000 in the aggregate at any one time outstanding or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) the Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or assets Person, or any merger or consolidation of a any Person with or into the Borrower or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Borrower would have a Consolidated Total Leverage Ratio equal to or less than 7.00:1.00 or (2) the Consolidated Total Leverage Ratio of the Borrower would equal or be less than the Consolidated Total Leverage Ratio of the Borrower immediately prior to giving effect thereto; provided, further, that if, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection Contribution Indebtedness and any Refinancing Indebtedness with the tender offer for all of such Capital Stockrespect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Subsection 8.1(a), and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to exceed the greater of $90,000,000 and 9.0% of Consolidated Total Assets;
(xiv) Indebtedness of the Borrower or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any one timetime outstanding not exceeding an amount equal to the greater of $25,000,000 and 2.5% of Consolidated Total Assets;
(xv) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding $18,000,000.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Subsection 8.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Subsection 8.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (xiiiii) obligations in the event that Indebtedness Incurred pursuant to Subsection 8.1(b) meets the criteria of more than one of the types of Indebtedness described in Subsection 8.1(b), the Borrower, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Subsection 8.1(b) (including in part under one such clause and in part under another such clause); provided that (if the Borrower shall so determine) any Indebtedness Incurred pursuant to Subsection 8.1(b)(xiii) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Subsection 8.1(a) from and after the first date on which the Borrower or any Restricted Subsidiary could have Incurred such Indebtedness under Subsection 8.1(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under Subsection 8.1(a), the Borrower, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under Subsection 8.1(a) and the remainder of such Indebtedness as having been Incurred under Subsection 8.1(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of letters Indebtedness outstanding under any subclause of credit Subsection 8.1(b), including for purposes of any determination of the “Maximum Incremental Facilities Amount”, shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness and (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred in reliance on a basket measured by reference to a percentage of Consolidated Total Assets at the time of Incurrence, and such refinancing would cause the percentage of Consolidated Total Assets restriction to be exceeded if calculated based on the Consolidated Total Assets on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or other credit support provided payable in connection with such refinancing. Notwithstanding anything herein to the contrary, Indebtedness Incurred by the Company Borrower on the Closing Date under this Agreement or the First Lien Credit Agreement shall be classified as Incurred under Subsection 8.1(b), and its Restricted Subsidiaries not under Subsection 8.1(a).
(d) For purposes of determining compliance with any dollar denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the dollar equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the ordinary course case of business term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness; provided that (x) the obligations under dollar equivalent principal amount of any such letters of credit are supported by letters of credit Indebtedness outstanding on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or other credit support issued or provided under in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the Credit Agreement;applicable dollar denominated restriction to be e
Appears in 1 contract
Sources: Second Lien Credit Agreement (PharMEDium Healthcare Holdings, Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its the Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness); provided, unless such Indebtedness is incurred by however, that the Company or and any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, may Incur Indebtedness (including Acquired Indebtedness) if on the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence date of such Indebtedness taken as one period is at least equal Incurrence and after giving effect thereto on a pro forma basis the Consolidated Net Leverage Ratio would not exceed 4.00 to or greater than 2.00:11.00.
(b) Notwithstanding Section 4.09(a) will not prohibit the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Incurrence of the following (collectively, the "Permitted Indebtedness")::
(i1) Indebtedness of the Company and any of the Restricted Subsidiaries under Credit Facilities in the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under (A) an amount equal to the Credit Agreement or in respect greater of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (ai)(a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and £3,500.0 million plus (b) the amount of any Credit Facilities incurred under Section 4.09(a) or any other provision of Section 4.09(b) to acquire any property, other assets or shares of Capital Stock of a Person and (ii) 5.0% of Total Assets, plus (B) any accrual or accretion of interest that increases the principal amount of Indebtedness under Credit Facilities, plus (C) in the case of any refinancing of any Indebtedness permitted under this Section 4.09(b)(1) or any portion thereof, the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) fees, underwriting discounts, premiums and other costs and expenses Incurred in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v2) Indebtedness of the Company owing to and held by any Restricted Subsidiary (other than a Restricted Subsidiary; provided that any Receivables Entity) or Indebtedness of the Company owing to a Restricted Subsidiary that is not owing to and held by the Company or any other Restricted Subsidiary (other than a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior IndebtednessReceivables Entity); provided, furtherhowever, that that:
(A) any disposition, pledge subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being beneficially held by a Person other than the Company or a Restricted Subsidiary (other than a Receivables Entity); and
(B) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary (other than a dispositionReceivables Entity), pledge or transfer to a Restricted Subsidiary) shall be deemed deemed, in each case, to be constitute an incurrence Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(3) (A) Indebtedness of the Issuer represented by the Notes (other obligor not permitted than any Additional Notes issued after the Issue Date), (B) Indebtedness of the Guarantors represented by the Note Guarantees and (C) Indebtedness represented by the Security Documents;
(4) any Indebtedness (other than the Indebtedness described in clauses (1), (2), (3) and (15)(a) of this clause Section 4.09(b)) outstanding on the Issue Date;
(v5) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in clauses (3), (4), (5), (6), (8), (15) or (19) of this Section 4.09(b) or Incurred pursuant to Section 4.09(a);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i6) Indebtedness of the Company or any a Restricted Subsidiary and/or (iiA) obligations Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company or a Restricted Subsidiary or is merged, consolidated, amalgamated or otherwise combined with (including pursuant to purchase or sell any acquisition of assets or properties, in each case, incurred in the ordinary course and assumption of business of related liabilities) the Company or any Restricted Subsidiary; provided(B) Incurred to provide all or a portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary; or (C) Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company or a Restricted Subsidiary or is merged, howeverconsolidated, that such Currency Hedging Agreements do not increase the Indebtedness amalgamated or other obligations otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Company or any Restricted Subsidiary outstanding (other than as Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a result of fluctuations in foreign currency exchange rates Restricted Subsidiary or was otherwise acquired by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any a Restricted Subsidiary); provided, however, that with respect to clauses (A) and (B) of this Section 4.09(b)(6) only, immediately following the consummation of the acquisition of such Restricted Subsidiary outstanding by the Company or such other transaction, (i) the Company and Restricted Subsidiaries would have been able to Incur £1.00 of additional Indebtedness pursuant to Section 4.09(a) after giving pro forma effect to the relevant acquisition or other transaction and the Incurrence of such Indebtedness pursuant to this Section 4.09(b)(6) or (ii) the Consolidated Net Leverage Ratio would not be greater than as a result of fluctuations in commodity prices immediately prior to such acquisition or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofother transaction;
(ix7) Indebtedness under Currency Agreements, Commodity Agreements and Interest Rate Agreements entered into for bona fide hedging purposes of (A) the Company and the Restricted Subsidiaries and (B) Virgin Media Finance, in each case, not for speculative purposes (as determined in good faith by the Board of Directors or senior management of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Company);
(8) Indebtedness consisting of (A) mortgage financings, Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personalfinancings, movable or immovable, property in each case incurred Incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property (real or personal), plant, equipment or other assets used or useful in the business of the CompanyCompany or such Restricted Subsidiary or (B) Indebtedness otherwise Incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement of property (real or personal), plant, equipment or other assets used or useful in the business of the Company or such Restricted Subsidiary, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Refinancing Indebtedness which refinances, replaces or refunds such Indebtedness, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (ix8) will not exceed the greater of (i) not to exceed $35,000,000 outstanding £200.0 million and (ii) 3.0% of Total Assets at any time; provided that time outstanding so long as such Indebtedness exists on the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Valuedate of, as determined by the Company in good faithor commissioning of, of the acquired or constructed asset contracting for, such purchase, design, development, construction, installation or improvement so financedimprovement, or is created within 270 days thereafter;
(x9) Indebtedness in respect of (A) workers’ compensation claims, self-insurance obligations, performance, bid, indemnity, surety, judgment, appeal, advance payment, customs, VAT or other tax or other guarantees or other similar bonds, instruments or obligations arising from agreements and completion guarantees and warranties provided by the Company or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or in respect of any government requirement, (B) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business, including letters of credit or similar instruments in respect of self-insurance and workers compensation obligations, (C) the financing of insurance premiums in the ordinary course of business and (D) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business;
(10) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustment of purchase price or similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business business, assets or assets Capital Stock of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of provided that the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an maximum aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations liability in respect of letters all such Indebtedness shall at no time exceed the gross proceeds (including the fair market value of credit or other credit support provided non-cash proceeds) actually received by the Company and its the Restricted Subsidiaries in connection with such disposition;
(11) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business provided business, provided, however, that such Indebtedness is extinguished within thirty Business Days of Incurrence;
(12) guarantees by the obligations under Issuer or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than of any Indebtedness Incurred by the Company or Restricted Subsidiary in violation of this Section 4.09); provided, however, that if the Indebtedness being guaranteed is subordinated in right of payment to the Notes or any Note Guarantee, then such letters of credit are supported by letters of credit or other credit support issued or provided under guarantee shall be subordinated substantially to the Credit Agreementsame extent as the relevant Indebtedness guaranteed;
(13) [Reserved];
Appears in 1 contract
Sources: Indenture (Liberty Global PLC)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Synter Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by that the Company or any Guarantor or constitutes Acquired and the Note Guarantors may Incur Indebtedness if on the date of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence Incurrence of such Indebtedness taken as one period is at least equal to or the Consolidated Coverage Ratio would be greater than 2.00:12.00:1.00.
(b) Notwithstanding the foregoingSection 4.3(a), the Company and, to the extent specifically set forth belowwhere indicated, the its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company Incurred pursuant to the Senior Secured Credit Facility in a maximum principal amount not to exceed at any time (A) an aggregate principal amount of $40.0 million under the Company's Credit Agreement Term Loan Facility less the aggregate amount of all scheduled repayments of principal, or mandatory prepayments of principal with Net Available Cash from Asset Dispositions, applied to permanently reduce the Indebtedness outstanding under the Term Loan Facility, plus (including in the case of any refinancing thereof) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing, and (B) an aggregate principal amount outstanding at any time under the Revolving Credit Facility not to exceed $20.0 million less the amount of all mandatory prepayments of principal with Net Available Cash from Asset Dispositions, applied to permanently reduce the commitments under the Revolving Credit Facility, plus (in the case of any refinancing thereof) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(ii) Indebtedness of Foreign Subsidiaries for working capital purposes and any Guarantees in respect thereof, the aggregate principal amount of which Indebtedness outstanding at any time does not exceed, as to all such Foreign Subsidiaries, $15.0 million;
(iii) Indebtedness (A) of the Company to any Restricted Subsidiary and (B) of any Wholly Owned Subsidiary to the Company or any Restricted Subsidiary; provided, however, (x) in the case of clause (A), any such Indebtedness is subordinated to the Securities and (y) any subsequent issuance or 53 62 transfer of any Capital Stock or any other event that results in any such Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary or any other subsequent transfer of any such Indebtedness (except to the Company or a Wholly Owned Subsidiary) will be deemed, in each case, an Incurrence of Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(iv) Indebtedness represented by the Securities and the issuance of the Exchangeable Preferred Stock in the amount issued on the Issue Date, and any Indebtedness (other than the Indebtedness described in clause 4.3(b)(i), (ii) or (iii) above) outstanding on the date of the Indenture and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause 4.3(b)(iv) or Section 4.3(a) above (excluding the exchange of Exchangeable Preferred Stock for Exchange Debentures in accordance with the terms of the Certificate of Designation (as defined belowin the Purchase Agreement) for such Exchangeable Preferred Stock as in effect on the Issue Date;
(v) Indebtedness of the Company or any Restricted Subsidiary (A) to finance or refinance the deferred purchase price of newly acquired property of the Company and its Subsidiaries used in the ordinary course of business of the Company and its Subsidiaries (provided such purchase money financing is entered into within six months of the acquisition of such property), and any Refinancing Indebtedness with respect thereto, and (B) in the form of Capitalized Lease Obligations or Attributable Debt, and any Refinancing Indebtedness with respect thereto, in an aggregate amount (based on, in the case of clause (A), the remaining balance of the obligations therefor on the books of the Company and its Restricted Subsidiaries) not in excess, at any one time outstanding, of $10,0 million:
(vi) Indebtedness of the Company or any Restricted Subsidiary (which may comprise Bank Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 10.0 million;
(vii) Indebtedness represented by the Note Guarantees and (b) the aggregate amount Guarantees of Indebtedness incurred Incurred pursuant to clause 4.3(b)(i) or (xiiiii) of this Section 1008(b) in excess of $20,000,000above;
(iiviii) Indebtedness Guarantees (A) by any Note Guarantor of Senior Indebtedness, (B) by the Company or any Restricted Subsidiary under Note Guarantor of Guarantor Senior Indebtedness or (C) by any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Wholly Owned Subsidiary that is not a Note Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Wholly Owned Subsidiary as long as such obligations do that is not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofNote Guarantor;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur")indirectly, any Indebtedness (including any Acquired Indebtedness); PROVIDED, unless such Indebtedness is incurred by HOWEVER, that the Company or any Guarantor or constitutes Acquired and the Subsidiary Guarantors shall be entitled to Incur Indebtedness if, on the date of such Incurrence and after giving effect thereto on a Restricted Subsidiary andPRO FORMA basis, in each case, no Default has occurred and is continuing and the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal exceeds 2.0 to or greater than 2.00:11.0.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, and the Restricted Subsidiaries may incur each and shall be entitled to Incur any or all of the following Indebtedness:
(collectively1) Indebtedness Incurred by the Company and the Subsidiary Guarantors pursuant to any Revolving Credit Facility; PROVIDED, HOWEVER, that, immediately after giving effect to any such Incurrence, the "Permitted Indebtedness"):
aggregate principal amount of all Indebtedness Incurred under this clause (1) and then outstanding does not exceed the greater of (i) Indebtedness $175 million and (ii) 60% of the book value of the inventory of the Company under and its Restricted Subsidiaries;
(2) Indebtedness Incurred by the Company's Credit Agreement (including Company and the Subsidiary Guarantors pursuant to any refinancing (as defined below) of Term Loan Facility; PROVIDED, HOWEVER, that, after giving effect to any such Indebtedness) in an Incurrence, the aggregate principal amount at any one time of all Indebtedness Incurred under this clause (2) and then outstanding does not to exceed $920,000,000 in any case under 250 million less the Credit Agreement or in aggregate sum of all principal payments actually made from time to time after the Issue Date with respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, to such Indebtedness (other than principal payments made from Refinancings thereof that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred are treated as Indebtedness Incurred pursuant to in this clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,0002));
(ii3) Indebtedness of owed to and held by the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated MaturityPROVIDED, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, furtherHOWEVER, that (A) any disposition, pledge subsequent issuance or transfer of any Capital Stock which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed deemed, in each case, to be an incurrence constitute the Incurrence of such Indebtedness by the obligor not permitted by this clause thereon and (viB) if the Company is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Securities;
(4) the Securities (other than any Additional Securities);
(vii5) guarantees of any Restricted Subsidiary made Indebtedness outstanding on the Issue Date (other than Indebtedness described in accordance with the provisions of Section 1013;
clause (viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding1), (b2), (3) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c4) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofthis Section 4.03(b));
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Sources: Indenture (Pathmark Stores Inc)
Limitation on Indebtedness. (a) The Company Parent Guarantor will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurindirectly, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including Acquired Indebtedness) and the Parent Guarantor will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or Preferred Stock; provided that the Parent Guarantor may Incur Indebtedness (including Acquired Indebtedness) or issue shares of Disqualified Stock, and any Restricted Subsidiary may incur Indebtedness (including Acquired Indebtedness), unless such Indebtedness issue shares of Disqualified Stock and issue shares of Preferred Stock, if either (x) the Consolidated Total Leverage Ratio of the Parent Guarantor and its Restricted Subsidiaries is incurred by no greater than 6.25 to 1.00 or (y) the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for of the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period Parent Guarantor and its Restricted Subsidiaries on a consolidated basis is at least equal 2.00 to or greater than 2.00:1.
1.00, in each case determined on a pro forma basis after giving effect thereto (b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all including a pro forma application of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtednessnet proceeds therefrom); provided, further, that Non-Guarantors may not Incur Indebtedness if, after giving pro forma effect to such Incurrence (including a pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $200 million and (b) 2.5% of Total Assets of Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph.
(b) SECTION 3.2(a) will not prohibit the Incurrence of the following:
(1) Indebtedness Incurred pursuant to any dispositionCredit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), pledge including the Notes issued on the Issue Date, in a maximum aggregate principal amount at any time outstanding not exceeding (i) the sum of (a) $3,950 million plus (b) the greater of $960 million and 100% of LTM EBITDA; plus (ii) any Refinancing Indebtedness in respect thereof;
(2) Guarantees by the Parent Guarantor or transfer any Restricted Subsidiary of Indebtedness or other obligations of the Parent Guarantor or any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence Subsidiary so long as the Incurrence of such Indebtedness or other obligations is not prohibited by the Company terms of this Indenture; provided that if the Indebtedness being Guaranteed constitutes Pari Passu Indebtedness or other obligor not permitted by this clause (v)Subordinated Indebtedness, the Guarantees must be pari passu with or subordinated to the same extent as the Notes or Note Guarantees;
(vi3) Indebtedness of the Parent Guarantor owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Parent Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Currency Hedging Agreements do not increase Indebtedness being beneficially held by a Person other than the Indebtedness Parent Guarantor or a Restricted Subsidiary; and
(ii) any sale or other obligations transfer of any such Indebtedness to a Person other than the Company Parent Guarantor or a Restricted Subsidiary; shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Parent Guarantor or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (a) the Existing Secured Notes (other than any additional Existing Secured Notes), including any Guarantee thereof, and the Senior Notes (other than any additional Senior Notes), including any Guarantee thereof, (b) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1), (3) or (4)(a)) outstanding on the Issue Date, and any Guarantee thereof, (c) Refinancing Indebtedness (including, with respect to the Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4) or clauses (2), (5), (10) or (19) of this SECTION 3.2(b) or Incurred pursuant to SECTION 3.2(a), and (d) Management Advances;
(5) Indebtedness of (x) the Parent Guarantor or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates Incurred or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements issued to finance an acquisition or (cy) under Persons that are acquired by the Parent Guarantor or any Commodity Price Protection Agreements which do not increase Restricted Subsidiaries or merged into or consolidated with the Parent Guarantor or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that on the date the acquisition, merger or consolidation, as applicable, is consummated, and after giving pro forma effect to the Incurrence of such Indebtedness, either (A) the total amount of Indebtedness Incurred and outstanding under this clause (5) is in an aggregate amount not to exceed the greater of (x) $300 million and (y) 3.5% of Total Assets, or other obligations (B) any of the Company following are satisfied as of the date of incurrence (i) the Parent Guarantor would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to SECTION 3.2(a), (ii) either (a) the Consolidated Total Leverage Ratio of the Parent Guarantor and the Restricted Subsidiaries would not be higher, or any (b) the Fixed Charge Coverage Ratio of the Parent Guarantor and the Restricted Subsidiaries on a consolidated basis would not be lower, in each case than that immediately prior to such acquisition, merger or consolidation, or (iii) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Parent Guarantor or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(6) Swap Obligations (excluding Swap Obligations entered into for speculative purposes (as determined in the good faith judgment of the Parent Guarantor));
(7) Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations in an aggregate outstanding principal amount which, when taken together with the principal amount of all other than as a result Indebtedness Incurred pursuant to this clause and then outstanding, does not exceed the greater of fluctuations in commodity prices or by reason (a) $200 million and (b) 2.5% of fees, indemnities Total Assets and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors any Refinancing Indebtedness in respect thereof;
(ix8) Indebtedness in respect of (a) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment (including progress premiums), customs, value added or other - 118 - Indebtedness incurred tax or assumed in connection with the acquisition other guarantees or development of real other similar bonds, instruments or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; obligations and completion guarantees and warranties provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company Parent Guarantor or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice; (b) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five (5) Business Days of Incurrence; (c) customer deposits and advance payments (including progress premiums) received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; (d) letters of credit, bankers’ acceptances, warehouse receipts, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice; and (e) Cash Management Services;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Parent Guarantor and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Parent Guarantor and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed 100% of the Net Cash Proceeds received by the Parent Guarantor from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or otherwise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of the Parent Guarantor, in each case, subsequent to the Issue Date, and any Refinancing Indebtedness in respect thereof; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent the Parent Guarantor and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause to the extent such Net Cash Proceeds or cash have been applied to make Restricted Payments;
(xi11) loan notesIndebtedness of Non-Guarantors in an aggregate amount, if anytogether with any Refinancing Indebtedness in respect thereof, not to exceed the greater of (a) $200 million and (b) 2.5% of Total Assets and at any time outstanding;
(12) Indebtedness consisting of promissory notes issued by the Parent Guarantor or any of its Subsidiaries to a holder any current or former employee, director or consultant of the shares Parent Guarantor, any of its Subsidiaries or any Parent Entity (or permitted transferees, assigns, estates or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital StockParent Guarantor or any Parent Entity that is permitted by SECTION 3.3;
(xii13) Indebtedness of the Sytner Group plc and Parent Guarantor or any of its Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with any Refinancing Indebtedness in respect thereof and the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (a) $350 million and (b) 4.0% of Total Assets;
(15) Indebtedness in respect of any Qualified Securitization Facility of any Receivables Facility, which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (a) $200 million and (b) 2.5% of Total Assets;
(16) Indebtedness of the Parent Guarantor or any Guarantor arising pursuant to any Permitted Tax Restructuring;
(17) Indebtedness owed to the seller of any business or assets permitted to be acquired by the Parent Guarantor or any Restricted Subsidiary under this Indenture; provided that the aggregate amount of Indebtedness Incurred pursuant to this clause and then outstanding will not exceed $90,000,000 80 million;
(18) obligations in respect of Disqualified Stock or Preferred Stock in an aggregate amount outstanding which, when taken together with the liquidation preference of all other Disqualified Stock or Preferred Stock issued pursuant to this clause and then outstanding, will not exceed the greater or (a) $200 million and (b) 2.5% of Total Assets;
(19) [Reserved];
(20) Indebtedness permitted to remain outstanding under the Bankruptcy Plan, the Company’s guarantee of performance under the Transition Services Agreement and Indebtedness arising therefrom as well as Indebtedness from the Company’s indemnification obligations under the Tax Matters Agreement, and any Refinancing Indebtedness in respect thereof; and
(21) Indebtedness incurred by the Parent Guarantor or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are deposited with the Trustee within five (5) Business Days to satisfy or discharge the Notes or exercise the Company’s legal defeasance or covenant defeasance, in each case, in accordance with this Indenture.
(c) For purposes of determining compliance with, and the outstanding amount of any particular Indebtedness, Disqualified Stock or Preferred Stock, Incurred or issued pursuant to and in compliance with, this SECTION 3.2:
(1) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in SECTIONS 3.2(a) and 3.2(b), the Parent Guarantor, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in SECTION 3.2(a) or one of the clauses of SECTION 3.2(b); provided that Indebtedness outstanding on the Issue Date under the Credit Agreement shall be treated as incurred under SECTION 3.2(b)(1) and may not be reclassified;
(2) additionally, except as set forth in SECTION 3.2(c)(1) above, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in SECTIONS 3.2(a) and 3.2(b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision at the time of reclassification;
(3) in the case of any one time; Refinancing Indebtedness, such Indebtedness shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (xiiiincluding, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing;
(4) Guarantees of, or obligations in respect of letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the ordinary course determination of business provided that the a particular amount of Indebtedness shall not be included;
(5) if obligations under such in respect of letters of credit credit, bankers’ acceptances or other similar instruments are supported by Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to of SECTION 3.2(a) or SECTION 3.2(b) and the letters of credit credit, bankers’ acceptances or other credit support similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(6) the amount of any Disqualified Stock of the Parent Guarantor or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the liquidation preference thereof on the date of issuance;
(7) Indebtedness, Disqualified Stock or Preferred Stock, permitted by this SECTION 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness, Disqualified Stock or Preferred Stock, but may be permitted in part by one such provision and in part by one or more other provisions of this SECTION 3.2 permitting such Indebtedness, Disqualified Stock or Preferred Stock; and
(8) the amount of Indebtedness issued at a price less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of GAAP.
(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or provided under amortization of original issue discount, the Credit Agreement;payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness or the issuance of Disqualified Stock o
Appears in 1 contract
Sources: Indenture (iHeartMedia, Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, create, incur, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurliable, contingently or otherwise (collectivelyotherwise, "incur"), with respect to any Indebtedness (including any Acquired Indebtedness)) and the Borrower will not, unless such and will not permit any Restricted Subsidiary to, issue any shares of Disqualified Stock or, in the case of Restricted Subsidiaries that are not Credit Parties, preferred Capital Stock. The foregoing limitations will not apply to:
(a) Indebtedness is incurred arising under or secured by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andCredit Documents (including, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence avoidance of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.doubt, any Incremental Loans, any Refinancing Loans, any Extended Term Loans, any Extended Revolving Credit Loans and any Replacement Term Loans);
(b) Notwithstanding Indebtedness representing deferred compensation to, or similar arrangements with, employees and independent contractors of the foregoing, Borrower or any Restricted Subsidiary to the Company extent incurred in the ordinary course of business or consistent with past practice;
(i) Indebtedness (including any unused commitment) outstanding on the Closing Date and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash is in excess of $40,000,000 50,000,000, listed on Schedule 10.1 and (bii) intercompany Indebtedness (including any unused commitment) outstanding on the aggregate amount of Closing Date owed by the Borrower to a Restricted Subsidiary, by a Restricted Subsidiary to the Borrower or by a Restricted Subsidiary to another Restricted Subsidiary; provided that any such Indebtedness incurred under this clause (c)(ii) that is owing by a Credit Party to a Restricted Subsidiary that is not a Credit Party shall be subordinated in right of payment to the Obligations pursuant to clause (xii) an Intercompany Note or otherwise, in either case, to prohibit the repayment thereof after the acceleration of this Section 1008(b) in excess the Loans or bankruptcy of $20,000,000such Credit Party;
(iid) Indebtedness (including Finance Lease Obligations), Disqualified Stock and preferred Capital Stock incurred or issued by the Borrower or any Restricted Subsidiary to finance the purchase, lease, construction, installation, maintenance, replacement or improvement of property (real or personal) or equipment that is used or useful in a Similar Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets and Indebtedness arising from the conversion of the Company obligations of the Borrower or any Restricted Subsidiary under or pursuant to any Inventory Facility“synthetic lease” transactions to on-balance sheet Indebtedness of the Borrower or such Restricted Subsidiary (or any such Indebtedness, Disqualified Stock or preferred Capital Stock incurred to refinance any such Indebtedness, Disqualified Stock or preferred Capital Stock outstanding under this clause (d)), in an aggregate outstanding principal amount which, when aggregated with the principal amount of all other Indebtedness, Disqualified Stock and preferred Capital Stock then outstanding and incurred or issued pursuant to this clause (d), does not exceed the sum of (i) an amount equal to the greater of (x) $260,500,000 and (y) 50% of Consolidated EBITDA (calculated on a Pro Forma Basis) for the most recently ended Test Period at the time of incurrence or issuance, (ii) the principal amount of such Indebtedness outstanding on the Closing Date and (iii) an unlimited amount so long as, in the case of this Section 10.1(d)(iii), the First Lien Net Leverage Ratio (provided that, solely for purpose of calculating such First Lien Net Leverage Ratio pursuant to this Section 10.1(d)(iii), the outstanding principal amount of such Indebtedness incurred pursuant to this Section 10.1(d)(iii) shall be included in then determining the First Lien Net Leverage Ratio for purposes of this Section 10.1(d)(iii)) determined on a Pro Forma Basis, shall not exceed the greater of (x) 3.50 to 1.00 and (y) the First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness; provided that Finance Lease Obligations incurred by the Borrower or any Restricted Subsidiary pursuant to this clause (d) in connection with a Permitted Sale Leaseback shall not be subject to the foregoing limitations so long as the net cash proceeds of such Permitted Sale Leaseback are used by the Borrower or such Restricted Subsidiary to permanently repay outstanding Term Loans or other Indebtedness secured by a Lien on the assets subject to such Permitted Sale Leaseback;
(iiie) Indebtedness incurred by the Borrower or any Restricted Subsidiary (including letter of credit obligations and reimbursement obligations with respect to letters of credit issued in the ordinary course of business), in respect of workers’ compensation claims, bid, appeal, performance or surety bonds, performance or completion guarantees, trade contracts, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and similar obligations in the ordinary course of business or other Indebtedness with respect to reimbursement or indemnification type obligations regarding workers’ compensation claims, bid, appeal, performance or surety bonds, performance or completion guarantees, trade contracts, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance and similar obligations in the ordinary course of business or consistent with past practice;
(f) Indebtedness constituting any part of any Permitted Reorganization;
(g) Indebtedness of the Company pursuant to the Securities Borrower owing, or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee Disqualified Stock of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing Borrower issued, to a Restricted Subsidiary; provided that any Indebtedness of the Company under this clause (g) owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and Credit Party must be subordinated in right of payment from and after such time as to the Securities shall become due and payable (whether at Stated Maturity, acceleration Obligations pursuant to an Intercompany Note or otherwise) , in either case, to prohibit the payment and performance repayment thereof after the acceleration of the Company's obligations under the Securities and to all Senior IndebtednessLoans or bankruptcy of such Credit Party; provided, further, provided further that any disposition, pledge subsequent issuance or transfer of any Capital Stock or any other event which results in any applicable Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such Indebtedness or Disqualified Stock (except to the Borrower or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Person (other than a disposition, pledge or transfer to a Restricted SubsidiaryPermitted Lien) shall be deemed deemed, in each case to be an incurrence of such Indebtedness by the Company Indebtedness, or other obligor issuance of such Disqualified Stock, as applicable, not permitted by this clause (vg);
(vih) Indebtedness of a Restricted Subsidiary owing owing, or Disqualified Stock or preferred Capital Stock of a Restricted Subsidiary issued, to the Company Borrower or another Restricted Subsidiary; provided that any if a Credit Party incurs such Indebtedness owing to a Restricted Subsidiary that is not a Credit Party, such Indebtedness is made pursuant subordinated in right of payment to an intercompany note in the form attached as Annex A Obligations owed or guaranteed by such Credit Party to this Indentureprohibit the repayment thereof after the acceleration of the Loans or bankruptcy of such Credit Party; provided, further, provided further that any disposition, pledge or subsequent transfer of any such Indebtedness to a Person Indebtedness, Disqualified Stock or preferred Capital Stock (other than a disposition, pledge or transfer except to the Company Borrower or another Restricted Subsidiary or any pledge of such Indebtedness constituting a Restricted SubsidiaryPermitted Lien) shall be deemed deemed, in each case to be an incurrence of such Indebtedness by the obligor Indebtedness, or issuance of Disqualified Stock or preferred Capital Stock, as applicable, not permitted by this clause (vih);
(viii) guarantees of any Restricted Subsidiary made in accordance with to the provisions of Section 1013;
extent constituting Indebtedness, customer deposits and advance payments (viiiincluding progress payments) obligations of the Company or any Guarantor entered into received in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred from customers for goods and services purchased in the ordinary course of business business;
(j) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes) and obligations in respect of Bank Products and Cash Management Services;
(k) obligations in respect of self-insurance, performance, bid, appeal, and surety bonds and completion guarantees and similar obligations provided by the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company Borrower or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit credit, bankers’ acceptances, warehouse receipts, bank guarantees or other credit support provided by the Company and its Restricted Subsidiaries similar instruments related thereto, in each case, in the ordinary course of business business;
(i) Indebtedness, Disqualified Stock and preferred Capital Stock of the Borrower or any Restricted Subsidiary in an aggregate outstanding principal amount or liquidation preference, which when aggregated with the outstanding principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and preferred Capital Stock then outstanding and incurred or issued pursuant to this clause (l)(i), does not at any one time outstanding exceed (x) 100.0% of the net cash or in-kind proceeds received by the Borrower since the Original Closing Date and prior to the Closing Date from the issue or sale of Equity Interests of the Borrower or cash contributed to the capital of the Borrower and (y) 200.0% of the net cash or in-kind proceeds received by the Borrower since immediately after the Closing Date from the issue or sale of Equity Interests of the Borrower or cash contributed to the capital of the Borrower (in each case, other than (I) Excluded Contributions, (II) Cure Amounts and (III) proceeds of Disqualified Stock or proceeds of sales of Equity Interests to the Borrower or any of its Subsidiaries), to the extent such net cash proceeds or cash have not been applied pursuant to such clauses to make Restricted Payments pursuant to Section 10.5(b) or to make Permitted Investments pursuant to clause (ix) of the definition thereof (this clause (l)(i), the “Contribution Debt Basket”) and (ii) Indebtedness, Disqualified Stock or preferred Capital Stock of the Borrower or any Restricted Subsidiary in an aggregate outstanding principal amount or liquidation preference, which when aggregated with the outstanding principal amount and liquidation preference of all other Indebtedness, Disqualified Stock and preferred Capital Stock then outstanding and incurred or issued pursuant to this clause (l)(ii), does not at any one time outstanding (other than with respect to Incremental Amounts) exceed the sum of (this clause (l)(ii), the “General Debt Basket”) (x) the greater of (I) $260,500,000 and (II) 50% of Consolidated EBITDA (calculated on a Pro Forma Basis) for the most recently ended Test Period at the time of incurrence or issuance plus (y) at the option of the Borrower, any amounts available for use under the General Investments Basket, the General Restricted Payments Basket and the General Subordinated Payments Basket that have been re-allocated by the Borrower to the General Debt Basket from time to time minus (z) the General Debt Basket Reallocated Amount (it being understood that any Indebtedness, Disqualified Stock or preferred Capital Stock incurred or issued pursuant to this clause (l)(ii) shall cease to be deemed incurred, issued or outstanding for purposes of this clause (l)(ii) and, in lieu thereof, shall be deemed incurred or issued under an applicable Basket under clause (B) of the Ratio Debt Basket from and after the first date on which the Borrower or such Restricted Subsidiary could have incurred or issued such Indebtedness, Disqualified Stock or preferred Capital Stock under an applicable Basket under clause (B) of the Ratio Debt Basket without reliance on this clause (l)(ii));
(m) the incurrence or issuance by the Borrower or any Restricted Subsidiary of Indebtedness, Disqualified Stock or preferred Capital Stock which serves to refinance any Indebtedness, Disqualified Stock or preferred Capital Stock incurred or issued as permitted under (i) Sections 10.1(c), (d), (l)(i), (n), (r), (v) (including any other financing that replaces any part of the 2032 Unsecured Notes), (w), (x), (y), (ee), (gg) and (ii) and this Section 10.1(m) or (ii) any Indebtedness, Disqualified Stock or preferred Capital Stock incurred or issued to so refinance, replace, refund, extend, renew, defease, restructure, amend, restate or otherwise modify (collectively, “refinance”) such Indebtedness, Disqualified Stock or preferred Capital Stock (the “Refinancing Indebtedness”), so long as the aggregate principal amount, accreted value or liquidation preference, as applicable, of such Refinancing Indebtedness shall equal no more than the sum of (I) the aggregate outstanding principal amount, accreted value or liquidation preference of the refinanced Indebtedness, Disqualified Stock or preferred Capital Stock, plus (II) amounts otherwise permitted under other Baskets under this Section 10.1, plus (III) the amount of any unused commitments under the refinanced Indebtedness, Disqualified Stock or preferred Capital Stock and any accrued interest, fees, defeasance costs and premium (including call and tender premiums), if any, under the refinanced Indebtedness, Disqualified Stock or preferred Capital Stock, and underwriting discounts, fees, commissions and expenses (including original issue discount, upfront fees and similar items) in connection with the refinancing of the applicable Indebtedness, Disqualified Stock or preferred Capital Stock and the incurrence or issuance of the applicable Refinancing Indebtedness (amounts of the type described in this clause (III), “Incremental Amounts”); provided that such Refinancing Indebtedness (other than with respect to Refinancing Indebtedness incurred or issued in respect of Indebtedness under Section 10.1(d)), (1) other than with respect to Refinancing Indebtedness incurred pursuant to the obligations Inside Maturity Basket, 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, Disqualified Stock or preferred Capital Stock being refinanced (or, if shorter, the Term Loans), (2) to the extent such Refinancing Indebtedness refinances (X) Indebtedness that is secured by a Lien on the Collateral ranking junior to the Liens on the Collateral securing any First Lien Obligations, such Refinancing Indebtedness is unsecured, secured solely by a Lien on assets that are not Collateral or secured by a Lien on the Collateral ranking junior to the Liens securing any First Lien Obligations or (Y) Disqualified Stock or preferred Capital Stock, such Refinancing Indebtedness must consist of Disqualified Stock or preferred Capital Stock, respectively, and (3) shall not include Indebtedness, Disqualified Stock or preferred Capital Stock of a Subsidiary of the Borrower that is not a Credit Party that refinances Indebtedness, Disqualified Stock or preferred Capital Stock of a Credit Party (unless otherwise permitted by this Section 10.1); provided further that in the case of a refinancing of Permitted Other Indebtedness incurred pursuant to Section 10.1(x)(b) with other Refinancing Indebtedness (“Refinancing Permitted Other Indebtedness”), such Refinancing Permitted Other Indebtedness, if secured, may only be secured by a Lien ranking junior to the Lien securing the First Lien Obligations outstanding under this Agreement and in the case of Refinancing Indebtedness with respect to clauses (d), (l)(i), (n) (but only to the extent such Refinancing Indebtedness is incurred by non-Credit Parties), (v), (gg) and (ii) of this Section 10.1, the incurrence of such Refinancing Indebtedness shall be without duplication of any amounts outstanding under any such clauses; provided further that without limitation of sub-clauses (I), (II) and (III) above, in no event shall the amount available under any Fixed Basket be increased as a result of any Indebtedness that was assumed or incurred under such letters Fixed Basket being refinanced by Refinancing Indebtedness under this clause (m) (including, for the avoidance of credit doubt, any subsequent refinancing under this clause (m) of such Refinancing Indebtedness);
(n) Indebtedness, Disqualified Stock or preferred Capital Stock of (x) the Borrower or a Restricted Subsidiary incurred, assumed or issued for any purpose (including to finance an acquisition, Investment, merger, amalgamation or consolidation) and (y) Persons that are supported acquired by letters of credit the Borrower or other credit support issued any Restricted Subsidiary or merged into, or amalgamated or consolidated with, the Borrower or a Restricted Subsidiary in accordance with the terms hereof (including designating an Unrestricted Subsidiary as a Restricted Subsidiary); provided under the Credit Agreement;that any such incurrence, as
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by that the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00.
(b) Notwithstanding the foregoingforegoing Section 407(a), the Company and, to the extent specifically set forth below, the and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Credit Agreement (I) Incurred (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under or bankers’ acceptances issued or created thereunder) and (without limiting the Credit Agreementforegoing), and guarantees by Guarantors in each case, any Refinancing Indebtedness in respect thereof; provided, howeverin a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to the greater of (x) $1,250.0 million and (y) an amount equal to the Borrowing Base (plus, that in the foregoing amount shall be reduced by (a) the U.S. dollar equivalent event of any loan notes referred to in clause (xi) refinancing of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing) plus (II) in an unlimited amount, if on the date of the Incurrence of such Indebtedness incurred pursuant (other than any such Refinancing Indebtedness), after giving effect to clause such Incurrence (xiior, at the Company’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness (such committed amount, a “Ratio Tested Committed Amount”), in which case such Ratio Tested Committed Amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause) the Consolidated Secured Leverage Ratio would be equal to or less than 2.00:1.00; and (in the case of this Section 1008(bsubclause (II)) in excess of $20,000,000any Refinancing Indebtedness with respect to any such Indebtedness (or Ratio Tested Committed Amount);
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company, or (B) of the Company or any Restricted Subsidiary under to any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note that, in the form attached as Annex A to case of this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated MaturitySection 407(b)(ii), acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to a Person (other than a disposition, pledge or transfer to be a Restricted Subsidiary) shall be deemed to be an incurrence Subsidiary or any other subsequent transfer of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer except to the Company or a Restricted Subsidiary) shall will be deemed to be deemed, in each case, an incurrence Incurrence of such Indebtedness by the obligor issuer thereof not permitted by this clause (viSection 407(b)(ii);
(viiiii) guarantees Indebtedness represented by the Notes (other than Additional Notes), any Indebtedness (other than the Indebtedness under any ABL Facility described in Section 407(b)(i)(I) above and the Indebtedness described in clause (xvii) below) outstanding (or Incurred pursuant to any commitment outstanding) on the Issue Date (including the Unsecured Notes issued on the Issue Date) and any Refinancing Indebtedness Incurred in respect of any Restricted Subsidiary made Indebtedness (or unutilized commitments) described in accordance with the provisions of this Section 1013407(b)(iii) or Section 407(a) above;
(viiiiv) obligations of Purchase Money Obligations and Finance Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto, (A) outstanding on the Company or any Guarantor entered into Issue Date and (B) in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the an additional aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that time outstanding not exceeding an amount equal to the principal amount greater of any Indebtedness permitted under this clause (ix) did not in each case at the time $300.0 million and 3.5% of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedConsolidated Tangible Assets;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Sources: Indenture (L Brands, Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Material Restricted Subsidiaries toSubsidiary to Incur any Indebtedness; provided, createhowever, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that (x) the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00 and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding clause (x) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of $100.0 million and 7.5% of Consolidated Tangible Assets at any time outstanding.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness Incurred pursuant to any Credit Facility (including but not limited to in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $3,500.0 million, plus (B) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing, minus (C) the aggregate principal amount of Delayed Draw Term Loans (if any) classified by the Borrower as Refinancing Indebtedness Incurred pursuant to clause 7.1(b)(iii) below to refinance any 2007 Notes or 2009 Notes, minus (D) the amount, if any, not borrowed under the Delayed Draw Term Loan Commitments upon the termination thereof on the Delayed Draw Term Loan Commitment Termination Date;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Company under the Company's Credit Agreement (including Borrower or any refinancing (as defined below) Restricted Subsidiary to any Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock of such IndebtednessRestricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this subsection 7.1(b)(ii);
(A) Indebtedness Incurred pursuant to the Senior Interim Loan Facility in an aggregate principal amount at any one time outstanding not to exceed exceeding (x) $920,000,000 1,150.0 million, plus (y) any increase in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing principal amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred such Indebtedness attributable to accretion of accreted value or the payment of interest in clause the form of additional Indebtedness, plus (xiz) in the event of this Section 1008(b) not collateralized by cash in excess any refinancing of $40,000,000 and (b) any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing, (B) any Indebtedness incurred pursuant to (other than the Indebtedness described in clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) above) outstanding on the Closing Date and (C) any Refinancing Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness described in this subsection 7.1(b)(iii) or the Exchange Securitiessubsection 7.1(a) above;
(iv) Purchase Money Obligations and Capitalized Lease Obligations, and any Refinancing Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiarywith respect thereto; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with Incurred to finance the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose Capital Stock of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount Person at any time outstanding pursuant to this clause (ix) shall not exceed an amount equal to exceed the greater of $35,000,000 outstanding at any time; provided that the principal amount 125.0 million and 10.0% of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedConsolidated Tangible Assets;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Sources: Credit Agreement (Servicemaster Co)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries toSubsidiary to Incur any Indebtedness; provided, createhowever, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that (x) the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, (1) the Company's Consolidated Fixed Charge First Lien Leverage Ratio would be equal to or less than 3.00:1.00 or (2) the Consolidated Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00 and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding clause (x) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed an amount equal to the greater of $100.0 million and 40.0% of Consolidated EBITDA for the Most Recent Four Quarter Period at any time outstanding.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than pursuant to any Credit AgreementFacility, and guarantees by Guarantors (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof; provided, however, that in a maximum principal amount at any time outstanding not exceeding in the foregoing aggregate the amount shall be reduced by equal to the sum of (aA) (i) $890.0 million 134 [[5629054]] minus (ii) the U.S. dollar equivalent amount of any loan notes referred voluntary repayment of Initial Term Loans and reductions in Initial Revolving Commitments that increase the “Maximum Incremental Facilities Amount” pursuant to in clause the definition thereof, plus (xiB) of this Section 1008(b) an amount not collateralized by cash in excess of $40,000,000 the Maximum Incremental Facilities Amount (provided that any such Indebtedness Incurred in the form of term loans secured on an equal and ratable basis by the same Collateral securing the Senior Credit Facility Obligations shall be subject to clause (bv) of the proviso to Section 2.9(d)) plus (C) in the event of any refinancing of any such Indebtedness, the aggregate amount of Indebtedness incurred pursuant to clause fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Company Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this subsection 7.1(b)(ii);
(iii) (x) any Indebtedness of (other than the Company pursuant to Indebtedness described in clause (ii) above) outstanding on the Securities or the Exchange Securities 2021 Amendment Effective Date and (y) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness described in this subsection 7.1(b)(iii) or the Exchange Securitiessubsection 7.1(a) above;
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person at any time outstanding on pursuant to this clause (iv) shall not exceed an amount equal to the initial Issue Date greater of $100.0 million and not otherwise referred to in this definition 40% of "Permitted Indebtedness"Consolidated EBITDA for the Most Recent Four Quarter Period;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation Guarantees for the benefit of trade creditors of the Company owing to a Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this subsection 7.1), or (B) shall be deemed without limiting subsection 7.2, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (visubsection 7.1);
(vii) guarantees Indebtedness of the Borrower or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations of the Company a check, draft or any Guarantor entered into similar instrument drawn against insufficient funds in the ordinary course of business business, or (aB) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates consisting of Guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to 135 [[5629054]] liabilities or obligations Incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), or assets (B) completion Guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations Incurred, in the ordinary course of business, including in respect of liabilities or obligations of franchisees, or (C) Hedging Obligations, entered into for bona fide hedging purposes, or (D) Management Guarantees, or (E) the financing of insurance premiums in the ordinary course of business, or (F) take-or-pay obligations under supply arrangements Incurred in the ordinary course of business, or (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement or (H) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Borrower or any Restricted SubsidiarySubsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this subsection 7.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower may classify such Indebtedness in whole or in part as Incurred under this subsection 7.1(b)(ix);
(x) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of (x) $10.0 million and (y) (A) (1) the Foreign Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries then outstanding pursuant to subsection 7.1(b)(ix) plus (B) in the event of any refinancing of any Indebtedness Incurred under this clause (x), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred or payable in connection with such refinancing;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection Contribution Indebtedness and any Refinancing Indebtedness with the tender offer for all of such Capital Stockrespect thereto;
(xii) Indebtedness of (A) the Sytner Group plc Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Borrower could Incur at least $1.00 of additional Indebtedness under subsection 7.1(a) or (2) the Consolidated Coverage Ratio of the Borrower would equal or exceed the Consolidated Coverage Ratio of the Borrower immediately prior to giving effect thereto; provided, further, that if, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (xii); and any Refinancing Indebtedness with respect to any such Indebtedness; 136 [[5629054]]
(xiii) Indebtedness of its Subsidiaries the Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Borrower or any Restricted Subsidiary and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount not to exceed $90,000,000 at any one timetime outstanding not exceeding an amount equal to the greater of $125.0 million and 50.0% of Consolidated EBITDA for the Most Recent Four Quarter Period;
(xiv) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with paragraph (a) above, and any Refinancing Indebtedness with respect thereto; and
(xv) Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $145.0 million and 55.0% of Consolidated EBITDA for the Most Recent Four Quarter Period.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this subsection 7.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this subsection 7.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures or otherwise provides credit support for the principal amount of such Indebtedness; (xiiiii) obligations in the event that Indebtedness Incurred pursuant to subsection 7.1(b) meets the criteria of more than one of the types of Indebtedness described in subsection 7.1(b) above, the Borrower, in its sole discretion, shall classify or reclassify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of subsection 7.1(b) (including in part under one such clause and in part under another such clause); provided that any Indebtedness Incurred pursuant to subsection 7.1(b)(iv) as limited by the proviso thereto, or subsection 7.1(b)(i) (to the extent such debt is unsecured), subsection 7.1(b)(xiii) or subsection 7.1(b)(xv) shall automatically, and without any further action by the Borrower, cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of subsection 7.1(a) from and after the first date on which the Borrower or any Restricted Subsidiary could have Incurred such Indebtedness under subsection 7.1(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under subsection 7.1(a), the Borrower, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under subsection 7.1(a) and the remainder of such Indebtedness as having been Incurred under subsection 7.1(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of letters Indebtedness outstanding under any clause of paragraph (b) above, including for purposes of any determination of the “Maximum Incremental Facilities Amount,” shall be determined after giving effect to the application of proceeds of any such Indebtedness; (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of subsection 7.1(b) measured by reference to a percentage of Consolidated EBITDA at the time of Incurrence, and such refinancing would cause such percentage of Consolidated EBITDA restriction to be exceeded if calculated based on the Consolidated EBITDA on the date of such refinancing, such percentage of Consolidated EBITDA restriction shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing; (vii) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of subsection 7.1(b) above measured by a 137 [[5629054]] Dollar amount, such Dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the extent the principal amount of such newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing and (viii) notwithstanding anything herein to the contrary pro forma effect shall be given to the consummation of the 2021 Transactions on any date of determination. Notwithstanding anything herein to the contrary, Indebtedness Incurred by the Borrower on the 2021 Amendment Effective Date under this Agreement shall be classified as Incurred under subsection 7.1(b)(i)(A), and may not later be reclassified.
(d) For purposes of determining compliance with any Dollar-denominated restriction or by reference to a percentage of Consolidated EBITDA for the Incurrence of Indebtedness, or Liens securing Indebtedness, denominated in a foreign currency, the Dollar-equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business delayed draw Indebtedness; provided that (x) the obligations under Dollar-equivalent principal amount of any such letters Indebtedness outstanding on the 2021 Amendment Effective Date shall be calculated based on the relevant currency exchange rate in effect on the 2021 Amendment Effective Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable Dollar-denominated restriction or percentage of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;C
Appears in 1 contract
Sources: Credit Agreement (Frontdoor, Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issueCreate, incur, assume, guarantee assume or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), suffer to exist any Indebtedness (including any Acquired IndebtednessIndebtedness of any of its Subsidiaries), unless except:
(a) Indebtedness of the Parent Borrower and its Subsidiaries incurred pursuant to this Agreement and the other Loan Documents;
(b) Indebtedness evidenced by the Senior Notes; provided that the aggregate principal amount of Indebtedness evidenced by Senior Notes at any time outstanding pursuant to this clause (b) shall not exceed $620,000,000 less any repayments of principal of Indebtedness theretofore outstanding pursuant to this clause (b);
(c) Assumed Indebtedness;
(d) Indebtedness incurred pursuant to the ABL Loan Documents; provided that the aggregate principal amount of Indebtedness at any time outstanding pursuant to this clause (d) shall not exceed $1,900,000,000;
(e) Indebtedness of (i) any Borrower (other than Canadian F▇▇▇▇) owing to any other Borrower or Holdings, (ii) any Borrower (other than Canadian F▇▇▇▇) owing to any Subsidiary, (iii) any Subsidiary Guarantor owing to Holdings or any Borrower (other than Canadian F▇▇▇▇) or any other Subsidiary Guarantor, (iv) any Non-Guarantor Subsidiary owing to any Borrower (other than Canadian F▇▇▇▇) or any Subsidiary Guarantor if permitted pursuant to subsection 7.7 and (v) any Non-Guarantor Subsidiary owing to any other Non-Guarantor Subsidiary, so long as any such Indebtedness of any Loan Party owing to any Subsidiary that is not a Loan Party shall be subject to subordination provisions substantially in the form of Exhibit G;
(f) Indebtedness of the Parent Borrower and any of its Subsidiaries incurred to finance or refinance the acquisition, leasing, construction or improvement of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) otherwise permitted pursuant to this Agreement, and any other Financing Leases, in an aggregate principal amount not, when added to the aggregate principal amount of outstanding Assumed Indebtedness of the type described in this paragraph (f), exceeding $200,000,000 at any one time outstanding, provided that such amount shall be increased by an amount equal to $30,000,000 on (x) each anniversary of the Closing Date, so long as no Default or Event of Default shall have occurred and be continuing on any date on which such amount is to be increased or (y) such later date on which such Default or Event of Default shall have been cured;
(g) (x) unsecured Indebtedness of the Parent Borrower and any of its Subsidiaries incurred to finance or refinance the purchase price of, or (y) Indebtedness of the Parent Borrower and any of its Subsidiaries assumed in connection with, any acquisition permitted by subsection 7.8; provided that (i) in the case of clause (x), such Indebtedness is incurred by prior to, substantially simultaneously with or within six months after such acquisition or in connection with a refinancing thereof, (ii) if such Indebtedness is owed to a Person other than the Company Person from whom such acquisition is made or any Guarantor or constitutes Acquired Affiliate thereof, such Indebtedness shall have terms and conditions reasonably satisfactory to the Administrative Agent and shall not exceed 70% of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence purchase price of such acquisition (including any Indebtedness taken assumed in connection with such acquisition) (or such greater percentage as one period is at least equal shall be reasonably satisfactory to or the Administrative Agent or, if any such purchase price shall be greater than 2.00:1.$100,000,000, such greater percentage as shall be reasonably satisfactory to the Required Lenders), (iii) if such Indebtedness is being assumed under this paragraph (g), such Indebtedness shall not have been incurred by any party in contemplation of the acquisition permitted by subsection 7.8 and (iv) immediately after giving effect to such acquisition no Default or Event of Default shall have occurred and be continuing;
(bh) Notwithstanding the foregoing, the Company and, to the extent specifically set forth belowthat any Indebtedness may be incurred or arise thereunder, the Restricted Subsidiaries may incur each and all Indebtedness of the following Parent Borrower and its Subsidiaries under Interest Rate Protection Agreements (collectively, the "other than those entered into for speculative purposes) and under Permitted Indebtedness"):Hedging Arrangements;
(i) to the extent that any Guarantee Obligation or other obligation permitted under subsection 7.3 constitutes Indebtedness, such Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related letters of credit, in each case provided in the ordinary course of business;
(k) Indebtedness of the Company Parent Borrower or any of its Subsidiaries in respect of Sale and Leaseback Transactions permitted under subsection 7.10;
(l) Indebtedness of the Parent Borrower or any of its Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(m) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds; provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(n) Indebtedness in respect of Financing Leases which have been funded solely by Investments of the Parent Borrower and its Subsidiaries permitted by subsection 7.7(l);
(o) Indebtedness which represents an extension, refinancing, refunding, replacement or renewal of any of the Indebtedness described in paragraphs (b), (c), (d) and (g) of this subsection 7.1 hereof; provided that (i) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so extended, refinanced, refunded, replaced or renewed, except by an amount equal to unpaid accrued interest and premium (including applicable prepayment penalties) thereon plus fees and expenses reasonably incurred in connection therewith, (ii) any Liens securing such Indebtedness are limited to all or part of the same property (including, if required by the documentation evidencing such Indebtedness being extended, refinanced, refunded, replaced or renewed, after-acquired property of the same type) that secured the Indebtedness being refinanced; provided that the total value of the collateral securing such Indebtedness incurred under this subsection 7.1(o) immediately following such incurrence shall not be materially greater than the value of the collateral securing the Indebtedness being extended, refinanced, refunded, replaced or renewed immediately prior to such extension, refinancing, refunding, replacement or renewal, (iii) no Loan Party that is not originally obligated with respect to repayment of such Indebtedness is required to become obligated with respect thereto, (iv) such extension, refinancing, refunding, replacement or renewal does not result in a shortening of the Weighted Average Life to Maturity of the Indebtedness so extended, refinanced, refunded, replaced or renewed and (v) if the Indebtedness that is extended, refinanced, refunded, replaced or renewed was subordinated in right of payment to the obligations of any Loan Party hereunder and under the Company's Credit Agreement other Loan Documents, then the terms and conditions of the extension, refinancing, refunding, replacement or renewal Indebtedness must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the extended, refinanced, refunded, replaced or renewed Indebtedness;
(including p) cash management obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case arising under standard business terms of any refinancing bank at which the Parent Borrower or Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;
(as defined belowq) Indebtedness of such IndebtednessForeign Subsidiaries of the Parent Borrower not exceeding in aggregate principal amount at any time outstanding an amount equal to $50,000,000; and
(r) Indebtedness not otherwise permitted by the preceding paragraphs of this subsection 7.1 not exceeding $275,000,000 in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 outstanding. For purposes of determining compliance with this subsection 7.1, 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 under the Credit Agreement or of such Indebtedness incurred (in respect of letters term Indebtedness) or committed (in respect of credit under revolving Indebtedness) on or prior to the Credit AgreementClosing 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 guarantees by Guarantors such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in respect thereof; providedeffect on the date of such refinancing, however, that the foregoing amount such Dollar-denominated restriction shall be reduced by deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (ai) the U.S. dollar equivalent outstanding or committed principal amount, as applicable, of any loan notes referred to in clause such Indebtedness being refinanced plus (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (bii) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities underwriting discounts, premiums and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities costs and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, expenses incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;refinancing.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (RSC Holdings Inc.)
Limitation on Indebtedness. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume, guarantee or otherwise in Incur any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Company or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, either (ai) the U.S. dollar equivalent of any loan notes referred Consolidated Total Corporate Leverage Ratio would be equal to in clause or less than 5.75:1.00 or if Incurred to finance an acquisition or Investment, the Consolidated Total Corporate Leverage Ratio immediately prior to such transaction or (xiii) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and the Consolidated Coverage Ratio would be equal to or greater than 2.00:1.00 or if Incurred to finance an acquisition or Investment, the Consolidated Coverage Ratio immediately prior to such transaction.
(b) Notwithstanding Section 413(a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to any Credit Facility (including in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to the sum of (A) $2,800.0 million, plus (B) the greater of (x) $1,310.0 million and (y) 100.0% of LTM Consolidated EBITDA, plus (C) in the event of any refinancing of any such Indebtedness, the aggregate amount of Indebtedness fees, underwriting discounts, premiums and other costs and expenses (including accrued unpaid interest) incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company or (B) of the Company or any Restricted Subsidiary to any Restricted Subsidiary; provided, that any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Company or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this clause (ii);
(iii) Indebtedness represented by the Notes (other than any Additional Notes), any Indebtedness (other than the Indebtedness described in clauses (i) and (ii) above) outstanding on the Issue Date and any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this clause (iii) or paragraph (a) above;
(iv) Purchase Money Obligations and Finance Lease Obligations, and any Refinancing Indebtedness with respect thereto;
(v) Indebtedness consisting of (w) accommodation guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries, (x) Guarantees in connection with the construction or improvement of all or any portion of a Public Facility to be used by the Company or any Restricted Subsidiary, (y) Guarantees required (in the good faith determination of the Company) in connection with Vehicle Rental Concession Rights or (z) any Guarantee in respect of any Franchise Vehicle Indebtedness or Franchise Lease Obligation;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 413), or (B) without limiting Section 409, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 413);
(vii) Indebtedness of the Company or any Restricted Subsidiary under (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds; provided that such Indebtedness is extinguished within five Business Days of its Incurrence, or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any Inventory Facilitybusiness, assets or Person;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(ivviii) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition respect of "Permitted Indebtedness";
(vA) Indebtedness letters of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturitycredit, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company bankers’ acceptances or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing similar instruments or obligations issued, or relating to the Company liabilities or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; providedobligations incurred, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (aincluding those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) pursuant completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to Interest Rate Agreements designed to protect liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary against fluctuations maintains an overdraft, cash pooling or other similar facility or arrangement or (H) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in interest rates connection with, a Financing Disposition or (B) otherwise Incurred in respect of connection with a Special Purpose Financing; provided that (1) such Indebtedness of is not recourse to the Company or any Restricted Subsidiary as that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), (2) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 413 for so long as such obligations do not exceed Indebtedness shall be so recourse; and (3) in the aggregate principal amount event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this clause (b)(ix) of this Section 413;
(x) Indebtedness of (A) the Company or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Company or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Company could Incur at least $1.00 of additional Indebtedness then outstanding, pursuant to paragraph (ba) under any Currency Hedging Agreements, relating to above or (2) either (i) the Consolidated Coverage Ratio of the Company would equal or be greater than the Consolidated Coverage Ratio of the Company immediately prior to giving effect thereto or (ii) the Consolidated Total Corporate Leverage Ratio of the Company would equal or be less than Consolidated Total Corporate Leverage Ratio of the Company immediately prior to giving effect thereto; and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) Indebtedness of the Company or any Restricted Subsidiary and/or in an aggregate principal amount at any time outstanding not exceeding an amount equal to (iiA) obligations the greater of (x) $2,900.0 million and (y) an amount equal to purchase or sell assets or properties, in each case, incurred (1) the Foreign Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) plus (B) in the ordinary course event of business any refinancing of any Indebtedness Incurred under this clause (xi), the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason aggregate amount of fees, indemnities underwriting discounts, premiums and compensation payable under other costs and expenses incurred in connection with such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofrefinancing;
(ixxii) Contribution Indebtedness, and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with paragraph (a) above, and any Refinancing Indebtedness with respect thereto;
(xiv) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $655.0 million and 50.0% of LTM Consolidated EBITDA; and
(xv) Indebtedness of Restricted Subsidiaries that are not Subsidiary Guarantors and of joint ventures in an aggregate principal amount at any time outstanding not exceeding the greater of $655.0 million and 50.0% of LTM Consolidated EBITDA.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 413, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 413) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 413(b), the Company, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Section 413(b) (including in part under one such clause (ix) not to exceed $35,000,000 outstanding at any timeand in part under another such clause); provided that (if the Company shall so determine) any Indebtedness Incurred pursuant to clause (b)(xiv) of this Section 413 shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Section 413(a) from and after any date designated by the Company on which the Company or any Restricted Subsidiary could have Incurred such Indebtedness under Section 413(a) without reliance on such clause, (iii) in the event that Indebtedness could be Incurred in part under Section 413(a), the Company, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under Section 413(a) and thereafter the remainder of such Indebtedness as having been Incurred under Section 413(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of Indebtedness outstanding under any clause of Section 413(b) shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of Section 413(b) measured by reference to a percentage of Consolidated EBITDA at the time of Incurrence, and such refinancing would cause such percentage of Consolidated EBITDA restriction to be exceeded if calculated based on the Consolidated EBITDA on the date of such refinancing, such percentage of Consolidated EBITDA shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing; and (vii) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of Section 413(b) measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the extent the principal amount of such newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.
(d) For purposes of determining compliance with any dollar-denominated restriction on the Incurrence of Indebtedness or Liens denominated in a foreign currency, the dollar-equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness; provided that (x) the dollar-equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), 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 (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing and (z) the dollar-equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to a Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, (i) the Issue Date, (ii) any date on which any of the respective commitments under such Credit Facility shall be reallocated between or among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (iii) the date of such Incurrence. The principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary Incurred to provide for indemnification, customary purchase price closing adjustments, earn-outs or refinance other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notesIndebtedness, if anyIncurred in a different currency from the Indebtedness being refinanced, issued shall be calculated based on the currency exchange rate applicable to a holder of the shares of Capital Stock of Sytner Group plc currencies in connection with which such respective Indebtedness is denominated that is in effect on the tender offer for all date of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;refinancing.
Appears in 1 contract
Sources: Indenture (Hertz Corp)
Limitation on Indebtedness. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurindirectly, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the Company and any Restricted Subsidiary may Incur Indebtedness (including Acquired Indebtedness) if on the date of such Incurrence and after giving effect thereto on a pro forma basis the Fixed Charge Coverage Ratio for the Company and its Restricted Subsidiaries is at least 2.00 to 1.00; provided that the aggregate principal amount of Indebtedness that may be Incurred pursuant to the foregoing amount by Non-Guarantor Subsidiaries, together with any Indebtedness incurred by Non-Guarantor Subsidiaries pursuant to Sections 4.09(b)(6) and (17), shall be reduced by not exceed the greater of (ax) the U.S. dollar equivalent $100.0 million and (y) 30.0% of Consolidated EBITDA at any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and one time outstanding.
(b) Section 4.09(a) shall not prohibit the aggregate amount Incurrence of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;the following Indebtedness:
(ii1) Indebtedness of the Company or any Restricted Subsidiary Incurred under a Credit Facility (including the Senior Credit Facilities) (including in the case of any Inventory refinancing of the Senior Credit Facilities or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing) and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof), in an aggregate amount at any time outstanding up to (a) $825.0 million plus the greater of (x) $300.0 million and (y) 100% of Consolidated EBITDA, plus (b) the greater of (x) $325.0 million and (y) the Borrowing Base, less (i) in each case, the aggregate principal amount of all principal repayments of Indebtedness under Credit Facilities (which, in the case of a revolving Credit Facility, shall mean a reduction in the corresponding amount of commitments) with Net Available Cash from Asset Sales made pursuant to Section 4.10(b)(1)(a) in satisfaction of the requirements of such covenant, less (ii) without duplication of any repayments set forth in the foregoing clause (i) in the case of Section 4.09(b)(1)(a), the amount of term loans outstanding under the Term Loan Facility and, in the case of Section 4.09(b)(1)(b), the amount of loans outstanding under the ABL Credit Agreement, in each case that are purchased by Ventas pursuant to its exercise of the Ventas Purchase Option;
(iii2) Indebtedness represented by the Notes (including any Note Guarantee) (other than any Additional Notes);
(3) Indebtedness of the Company pursuant to and its Restricted Subsidiaries in existence on the Securities or the Exchange Securities Issue Date (other than Indebtedness described in clauses (1) and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities(2));
(iv4) Guarantees by the Company or its Restricted Subsidiaries of Indebtedness permitted to be Incurred by the Company or a Restricted Subsidiary in accordance with the provisions of this Indenture; provided that in the event such Indebtedness that is being Guaranteed is a Subordinated Obligation or a Guarantor Subordinated Obligation, then any related Guarantee of the Company or a Note Guarantor shall be subordinated in right of payment to the Notes or the Note Guarantee, as the case may be;
(5) Indebtedness of the Company or Note Guarantor owing to and held by any Restricted Subsidiary outstanding on or Indebtedness of a Restricted Subsidiary owing to and held by the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";Company or any other Restricted Subsidiary; provided, however,
(va) Indebtedness of if the Company or a Note Guarantor is the obligor on Indebtedness owing to a Restricted Non-Guarantor Subsidiary; provided that any , such Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and expressly subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the Notes;
(b) if a Note Guarantor is the obligor on Indebtedness owing to a Non-Guarantor Subsidiary, such Indebtedness is subordinated in right of payment and performance to the Note Guarantees of such Note Guarantor;
(i) any subsequent issuance or transfer of Capital Stock or other event that results in any such Indebtedness being beneficially held by a Person other than the Company or a Restricted Subsidiary of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that and
(ii) any disposition, pledge sale or other transfer of any such Indebtedness to a Person (other than a disposition, pledge the Company or transfer to a Restricted Subsidiary) Subsidiary of the Company, shall be deemed deemed, in each case, to be constitute an incurrence Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be.
(6) Indebtedness of (x) Persons Incurred and outstanding on the date on which such Person became a Restricted Subsidiary or was acquired by, or merged into, or consolidated with the Company or any Restricted Subsidiary or (y) Incurred to provide all or any portion of funds utilized to consummate an acquisition (or other obligor purchase of assets) and any Refinancing Indebtedness with respect to any Indebtedness incurred pursuant to this Section 4.09(b)(6); provided, however, that in the case of clauses (x) and (y) after giving effect to such acquisition, merger or consolidation, either:
(a) the Company would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.09(a) after giving effect to such acquisition and the Incurrence of such Indebtedness pursuant to this Section 4.09(b)(6); or
(b) the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries is at least equal to the Fixed Charge Coverage Ratio immediately prior to such acquisition or merger; provided that the aggregate principal amount of Indebtedness incurred by Non-Guarantor Subsidiaries under this Section 4.09(b)(6), together with any Indebtedness incurred by Non-Guarantor Subsidiaries pursuant to Sections 4.09(a) and 4.09(b)(17), shall not permitted by this clause exceed the greater of (vx) $100.0 million and (y) 30% of Consolidated EBITDA at any one time outstanding
(7) Indebtedness under Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes);
(vi8) Indebtedness (including Capitalized Lease Obligations, mortgage financings or purchase money obligations) of the Company or a Restricted Subsidiary Incurred to finance any part of the purchase price for, or the cost of design, lease, construction, repair, maintenance, installation or improvement of, any property (real or personal), plant or equipment used or to be used in the business of the Company or a Restricted Subsidiary (or the Capital Stock of any Person owning any such property, plant or equipment (but no other material assets other than cash or cash equivalents)), and any Indebtedness of the Company or a Restricted Subsidiary that serves to refund, refinance, replace, exchange, renew, repay or extend any Indebtedness Incurred pursuant to this clause (8), in principal amount not to exceed the greater of (x) $120.0 million and (y) 40.0% of Consolidated EBITDA in the aggregate at any one time outstanding together with all other Indebtedness issued under this clause (8) then outstanding;
(9) Indebtedness Incurred by the Company or any of its Restricted Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid, surety, appeal and similar bonds and completion or performance Guarantees (not for borrowed money) provided in the ordinary course of business, and any letters of credit functioning as or supporting any of the foregoing;
(10) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification Incurred or assumed in connection with the acquisition or disposition of, or adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the disposition of, any business, property or assets of the Company or any business, property, assets or Capital Stock of a Restricted Subsidiary, other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, property, assets or a Subsidiary for the purpose of financing such acquisition;
(a) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business, provided, however, that such Indebtedness is extinguished, refinanced or otherwise covered within five Business Days of Incurrence, (b) Indebtedness owed on a short-term basis of no longer than 90 days to banks or financial institutions Incurred in the ordinary course of business that arises in connection with ordinary banking arrangements to manage cash balances of the Company and its Subsidiaries or (c) Indebtedness Incurred pursuant to the ordinary course transfer of funds and cash management transactions between or among Parent, the Company, the Restricted Subsidiaries, the Permitted Joint Ventures of the Company and the Restricted Subsidiaries and the BSA Entities;
(12) the Incurrence or issuance by the Company or any Restricted Subsidiary of Refi-nancing Indebtedness that serves to refund, refinance, replace, exchange, renew, repay or extend any Indebtedness Incurred as permitted under Section 4.09(a) and clauses (2), (3), (6) and this clause (12) of this Section 4.09(b) or any Indebtedness issued to so refund, refinance, replace, exchange, renew, repay or extend such Indebtedness, including additional Indebtedness Incurred to pay premiums (including reasonable, as determined in good faith by the Company, tender premiums), defeasance costs, accrued interest and fees and expenses in connection therewith prior to its respective maturity;
(13) shares of Preferred Stock of a Restricted Subsidiary owing issued to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge subsequent issuance or transfer of any Capital Stock or any other event that results in any such Indebtedness Restricted Subsidiary ceasing to be a Person Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (other than a disposition, pledge or transfer except to the Company or a another of its Restricted SubsidiarySubsidiaries) shall be deemed in each case to be an incurrence issuance of such Indebtedness by the obligor shares of Preferred Stock not permitted by this clause (vi13);
(vii14) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations Indebtedness consisting of the Company financing of (a) insurance premiums or any Guarantor entered into (b) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business business;
(a15) pursuant Indebtedness to Interest Rate Agreements designed the extent that the net proceeds thereof are promptly deposited to protect defease or to satisfy and discharge the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, Notes;
(b) under any Currency Hedging Agreements, relating to (i16) Indebtedness of the Company or any Restricted Subsidiary and/or in the form of loans from the Captive Insurance Subsidiary in an aggregate principal amount at any time outstanding not to exceed twenty percent (ii20%) obligations of the total assets of the Captive Insurance Subsidiary, as shown on the most recent balance sheet of the Captive Insurance Subsidiary in accordance with GAAP;
(17) Indebtedness of Non-Guarantor Subsidiaries together with any Indebtedness incurred by Non-Guarantor Subsidiaries pursuant to purchase Section 4.09(a) and clause (6) above not exceed the greater of (x) $100.0 million and (y) 30.0% of Consolidated EBITDA at any one time outstanding;
(18) Indebtedness consisting of Indebtedness issued by the Company or sell assets any of its Restricted Subsidiaries to current or propertiesformer officers, directors and employees thereof, their respective estates, spouses or former spouses, in each case, case to finance the purchase or redemption of Capital Stock of the Company or any direct or indirect parent entity of the Company to the extent permitted under this Indenture;
(19) unsecured Indebtedness in respect of obligations of the Company or any of its Restricted Subsidiaries 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 (which require that all such payments be made within 90 days after the incurrence of the related obligations) in the ordinary course of business business;
(20) Indebtedness incurred on behalf of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the representing Guarantees of Indebtedness or other obligations of Permitted Joint Ventures of the Company or any Restricted Subsidiary not in excess the greater of (x) $120.0 million and (y) 40.0% of Consolidated EBITDA at any one time outstanding;
(21) Indebtedness incurred in connection with Permitted IRB Transactions;
(22) Indebtedness of the BSA Entities in an amount not to exceed at any one time outstanding other than as a result of fluctuations $30.0 million; provided that such Indebtedness shall not be guaranteed in foreign currency exchange rates or any respect by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding Note Guarantor (other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofany BSA Entity);
(ix23) Attributable Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiaryarising from Permitted Sale/ Leaseback Transactions;
(xi24) loan notes, if any, issued Indebtedness Incurred pursuant to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries Qualified Receivables Transaction in an aggregate principal amount not to exceed the greater of (x) $90,000,000 at 75.0 million and (y) 25.0% of Consolidated EBITDA;
(25) in the event Ventas exercises the Ventas Purchase Option, any one timeGuarantee by Parent, the Company or any Domestic Restricted Subsidiary that borrows under or guarantees the Term Loan Facility (other than the Master Lease Tenants) of Indebtedness of the Master Lease Tenants owed to Ventas as a result of its exercise of the Ventas Purchase Option;
(26) Indebtedness that is secured by a Lien, so long as, immediately after giving effect to the Incurrence of such Indebtedness on the date such Indebtedness is Incurred (or in the case of Indebtedness Incurred pursuant to a revolving commitment under any Credit Facility on the date such revolving commitments are initially provided and assuming such revolving commitments are fully drawn on such date) on a pro forma basis the Senior Secured Net Leverage Ratio would not exceed 3.25 to 1.0; and
(xiii27) obligations in respect addition to the items referred to in clauses (1) through (26) above, Indebtedness of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in an aggregate outstanding principal amount that, when taken together with the ordinary course principal amount of business provided that all other Indebtedness Incurred pursuant to this clause (27) and then outstanding, will not exceed the obligations under such letters greater of credit are supported by letters (x) $100.0 million and (y) 30.0% of credit or other credit support issued or provided under the Credit Agreement;Consolidated EBITDA.
Appears in 1 contract
Limitation on Indebtedness. (ai) The Company will notNeither the Parent nor any of the Companies will, and the Companies will not cause or permit any of its their respective Restricted Subsidiaries to, directly or indirectly, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable liable, contingently or otherwise, for the payment of of, or otherwise incur, contingently including by way of merger, consolidation or otherwise acquisition (collectively, "“incur"”), any Indebtedness (including any Acquired IndebtednessIndebtedness and the issuance of Disqualified Stock), unless except any of the Credit Parties and the Subsidiary Guarantors may incur Indebtedness (including the issuance of Disqualified Stock) if, at the time of such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each caseincurrence, the Company's Consolidated Fixed Charge Coverage Ratio for would, after giving effect to such incurrence or issuance and the most recent four full fiscal quarters for which financial statements are available immediately preceding application of the incurrence of such Indebtedness taken as one period is proceeds thereof, have been at least equal 2.25 to or greater than 2.00:11.0.
(bii) Notwithstanding the foregoing, the Company and, to Credit Parties and the extent specifically set forth below, the Restricted Subsidiaries Subsidiary Guarantors may incur each and all any of the following Indebtedness (collectively, the "“Permitted Indebtedness"”):
(iA) Indebtedness of the Company Credit Parties and the Subsidiary Guarantors under the Company's Note Documents;
(B) Indebtedness of the Credit Parties and their Restricted Subsidiaries under the Senior Financing Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount not to exceed $150,000,000 at any one time outstanding outstanding;
(C) Indebtedness of the Credit Parties under the Junior Subordinated Indebtedness Documents in an aggregate principal amount not to exceed $920,000,000 in any case under 140,000,000, plus the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to interest thereon capitalized in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) accordance with the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000terms thereof;
(iiD) Indebtedness of the Company or any Credit Parties and Restricted Subsidiary under any Inventory FacilitySubsidiaries outstanding on the Purchase Date and listed on Schedule 8.1(a)(ii);
(iiiE) Indebtedness of the Company pursuant a Credit Party or a Subsidiary Guarantor to the Securities another Credit Party or Subsidiary Guarantor so long as such Indebtedness is held by a Credit Party or a Subsidiary Guarantor or the Exchange Securities holder of a Permitted Lien thereon and provided such Indebtedness of any Guarantor pursuant to owing by a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness Obligations pursuant to a Person (other than a disposition, pledge or transfer written agreement satisfactory to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Agent;
(viF) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations Obligations, mortgage financings or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personalpurchase money obligations, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or price, lease expense, cost of construction construction, repair or improvement of property or addition to property, plant or equipment used in the business of such Credit Party or such Restricted Subsidiary, the CompanyCapital Stock of a Restricted Subsidiary that owns such property, plant or equipment, in an aggregate principal amount amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace Indebtedness incurred pursuant to this clause (ix) F), not to exceed $35,000,000 outstanding 25,000,000 at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedoutstanding;
(xG) Hedging Obligations that are incurred in the normal course of business for the purpose of fixing or hedging currency, commodity or interest rate risk (including with respect to any floating rate Indebtedness that is permitted by the terms of this Agreement to be outstanding) and not for speculative purposes ;
(H) the guarantee by any Credit Party or any Restricted Subsidiary of Indebtedness of any other Credit Party or Restricted Subsidiary that was permitted to be incurred by another provision of this Section 8.2(a) or other obligations (including obligations under the operating leases) permitted to be incurred hereunder of any other Credit Party or Restricted Subsidiary of a Credit Party;
(I) Contingent Obligations (including obligations under leases, indemnification and guarantee obligations) in respect of Indebtedness and other obligations of Unrestricted Subsidiaries incurred in the ordinary course of business in connection with the financing of vehicles used in Permitted Businesses of such Unrestricted Subsidiaries;
(J) Indebtedness represented by guarantees or other Contingent Obligations in favor of airports, airport authorities and other Governmental Authorities for the construction of airport rental or related facilities to be used by any Company or any Restricted Subsidiary in the ordinary course of business that do not exceed in the aggregate $50,000,000 at any time outstanding;
(K) Indebtedness to finance the payment of insurance premiums and Indebtedness incurred in respect of workers’ compensation claims, self-insurance obligations, performance, surety, insurance and similar bonds and completion guarantees provided by any Credit Party or any Restricted Subsidiary in the ordinary course of business;
(L) Indebtedness arising from agreements by the Company of any Credit Party or a any Restricted Subsidiary to provide providing for indemnification, customary adjustment of purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business business, assets or assets Capital Stock of a Restricted Subsidiary;
(xiM) loan notesIndebtedness arising from the honoring by a bank or other financial institution of a check, if anydraft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, issued provided that such Indebtedness is extinguished within five Business Days of incurrence;
(N) Indebtedness of a Restricted Subsidiary incurred and outstanding on or prior to the date on which such Person was acquired by a holder Company or a Restricted Subsidiary (other than Indebtedness incurred in connection with or in contemplation of, or to provide all or any portion of the shares funds or credit support utilized to consummate, the transaction or series of Capital Stock related transactions pursuant to which such Person was acquired by a Company or a Restricted Subsidiary); provided, however, that on the date of Sytner Group plc such acquisition and after giving effect thereto, the Companies would have been able to incur at least $1.00 of additional Indebtedness pursuant to Section 8.2(a)(i);
(O) Indebtedness incurred in connection with the tender offer for all acquisition of vehicles directly from the manufacturer thereof, provided, that such Indebtedness does not exceed the net book value of such Capital Stockvehicles and no Event of Default shall exist after giving effect thereto and the use of proceeds thereof;
(xiiP) purchase money Indebtedness of a Company or any of its Restricted Subsidiaries incurred in connection with the purchase of a franchisee in an aggregate amount for all Companies and their Restricted Subsidiaries not to exceed $5,000,000 at any time outstanding;
(Q) Additional Indebtedness of the Sytner Group plc and Companies or any of its their Restricted Subsidiaries in an aggregate principal amount for all Companies and their Restricted Subsidiaries not to exceed $90,000,000 10,000,000 at any one timetime outstanding; and
(xiiiR) obligations Permitted Refinancing Indebtedness; provided, however, that no Permitted Indebtedness described in respect clause (N) and (R) above may be incurred if after giving effect to the incurrence of letters such Indebtedness and the use of credit or other credit support provided by the Company and its Restricted Subsidiaries proceeds thereof, an Event of Default shall exist.
(iii) For purposes of determining compliance with this Section 8.2(a), in the ordinary course event that an item of business proposed Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness described in clauses (A) through (R) of this Section 8.2(a) as of the date of incurrence thereof or is entitled to be incurred pursuant to paragraph (i) of this Section 8.2(a) as of the date of incurrence thereof, the Companies shall, in their sole discretion, classify (or later reclassify in whole or in part, in their sole discretion) such item of Indebtedness in any manner that complies with this Section 8.2(a). Accrual of interest, accrual of dividends, the accretion of accreted value and the payment of interest in the form of additional Indebtedness and the payment of dividends on Disqualified Stock or preferred stock in the form of additional shares of the same class of Disqualified Stock or preferred stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred stock for purposes of this covenant.
(iv) For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness denominated in a foreign currency, the U.S. dollar-equivalent principal amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was incurred, provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the obligations under applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange in effect on the date of such letters refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of credit are supported by letters such refinancing Indebtedness does not exceed the principal amount of credit or other credit support issued or provided under the Credit Agreement;such Indebtedness being refinanced.
Appears in 1 contract
Sources: Note Purchase Agreement (Vanguard Car Rental Group Inc.)
Limitation on Indebtedness. (a) The Company Issuer and Holdings will not, and will not cause or permit any of its their Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Issuer, Holdings and any of their Restricted Subsidiaries may Incur Indebtedness (aincluding Acquired Indebtedness) if on the U.S. dollar equivalent date of any loan notes referred to in clause such Incurrence and after giving pro forma effect thereto (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness including pro forma application of the Company or any proceeds thereof), the Fixed Charge Coverage Ratio for Holdings and its Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant Subsidiaries is greater than 2.00 to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness1.00; provided, further, that Non-Guarantors may not Incur Indebtedness under this paragraph if, after giving pro forma effect to such Incurrence (including pro forma application of the net proceeds therefrom), more than an aggregate of the greater of (a) $150.0 million and (b) 2.5% of Total Assets of Indebtedness of Non-Guarantors would be outstanding pursuant to this paragraph at such time.
(b) Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness (collectively, “Permitted Debt”):
(1) Indebtedness Incurred pursuant to any dispositionCredit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence and Guarantees in respect of such Indebtedness by in a maximum aggregate principal amount at any time outstanding not exceeding (i) $3,850 million, plus (ii) in the Company case of any refinancing of any Indebtedness permitted under this Section 3.2(b)(1) or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other obligor not permitted by this clause costs and expenses (v)including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with such refinancing, and any Refinancing Indebtedness in respect thereof;
(vi2) Guarantees by Holdings, the Issuer or any Restricted Subsidiary of Indebtedness or other obligations of Holdings, the Issuer or any Restricted Subsidiary so long as the Incurrence of such Indebtedness or other obligations is not prohibited by the terms of this Indenture;
(3) Indebtedness of Holdings or the Issuer owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by Holdings, the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company Issuer or any Restricted Subsidiary; provided, however, that that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Currency Hedging Agreements do not increase Indebtedness being beneficially held by a Person other than Holdings, the Indebtedness Issuer or a Restricted Subsidiary of the Issuer; and
(ii) any sale or other obligations transfer of any such Indebtedness to a Person other than Holdings, the Issuer or a Restricted Subsidiary of the Company Issuer, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by Holdings, the Issuer or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (i) the Notes (other than any Additional Notes), including any Guarantee thereof, (ii) any Indebtedness (other than Indebtedness incurred pursuant to clauses (1) and (3)) outstanding on the Issue Date (including the Existing Notes), (iii) Refinancing Indebtedness (including, in the case of the Notes (other than any Additional Notes), the Existing Notes and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause or clauses (5), (6), (9) or (10) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a), and (iv) Management Advances;
(5) Indebtedness of (x) Holdings, the Issuer or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates Incurred or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements issued to finance an acquisition or (cy) under any Commodity Price Protection Agreements which do not increase Persons that are acquired by Holdings, the amount of Indebtedness or other obligations of the Company Issuer or any Restricted Subsidiary outstanding or merged into or consolidated with Holdings, the Issuer or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that after giving effect to such acquisition, merger or consolidation, either
(i) Holdings would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 3.2(a),
(ii) the Fixed Charge Coverage Ratio of Holdings and its Restricted Subsidiaries would not be lower than immediately prior to such acquisition, merger or consolidation; or
(iii) such Indebtedness constitutes Acquired Indebtedness (other than as Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a result Restricted Subsidiary or was otherwise acquired by Holdings, the Issuer or a Restricted Subsidiary); provided that the only obligors with respect to such Indebtedness shall be those Persons who were obligors of fluctuations such Indebtedness prior to such acquisition, merger or consolidation
(6) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) Indebtedness represented by Capitalized Lease Obligations or Purchase Money Obligations, in commodity prices or by reason an aggregate outstanding principal amount which, when taken together with the principal amount of feesall other Indebtedness Incurred pursuant to this clause (7) and then outstanding, indemnities does not exceed the greater of (i) $150.0 million and compensation payable under such Commodity Price Protection Agreements, (ii) 2.5% of Total Assets at the time of Incurrence and guarantees by Guarantors any Refinancing Indebtedness in respect thereof;
(ix8) Indebtedness in respect of (a) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other - 118 - Indebtedness incurred tax or assumed in connection with other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by Holdings, the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company Issuer or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice; (b) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five Business Days of Incurrence; (c) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice; (d) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice; and (e) any customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, cash pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business or consistent with past practice;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of Holdings, the Issuer and their Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the gross proceeds, including the fair market value of non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by Holdings, the Issuer and their Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (10) and then outstanding, will not exceed 100% of the Net Cash Proceeds received by Holdings from the issuance or sale (other than to a Restricted Subsidiary) of its Capital Stock (other than Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) or otherwise contributed to the equity (other than through the issuance of Disqualified Stock, Designated Preferred Stock or an Excluded Contribution) of Holdings, in each case, subsequent to the Issue Date, and any Refinancing Indebtedness in respect thereof; provided, however, that (i) any such Net Cash Proceeds that are so received or contributed shall not increase the amount available for making Restricted Payments to the extent Holdings and its Restricted Subsidiaries Incur Indebtedness in reliance thereon and (ii) any Net Cash Proceeds that are so received or contributed shall be excluded for purposes of Incurring Indebtedness pursuant to this clause (10) to the extent such Net Cash Proceeds or cash have been applied to make Restricted Payments;
(xi11) loan notesIndebtedness of Non-Guarantors in an aggregate amount not to exceed the greater of (i) $200.0 million or (b) 3.25% of Total Assets at any time outstanding, if anyand any Refinancing Indebtedness in respect thereof;
(12) Indebtedness consisting of promissory notes issued by Holdings, issued the Issuer or any of their Subsidiaries to a holder any current or former employee, director or consultant of Holdings, the shares Issuer, any of its Subsidiaries or any Parent Entity (or permitted transferees, assigns, estates, or heirs of such employee, director or consultant), to finance the purchase or redemption of Capital Stock of Sytner Group plc Holdings, the Issuer or any Parent Entity that is permitted by Section 3.3;
(13) Indebtedness of Holdings, the Issuer or any of their Restricted Subsidiaries consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case Incurred in the ordinary course of business or consistent with past practice;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (a) $250.0 million and (b) 4.0% of Total Assets, and any Refinancing Indebtedness in respect thereof; and
(15) Indebtedness of (a) any Securitization Subsidiary arising under any Securitization Facility or (b) Holdings, the Issuer or any Restricted Subsidiary arising under any Receivables Facility.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:
(1) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 3.2(a) or (b), the Issuer, in its sole discretion, will classify, and may from time to time reclassify, such Indebtedness and only be required to include the amount and type of such Indebtedness in one of the clauses of Section 3.2(a) or (b);
(2) additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in Section 3.2(a) and (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision and any related Liens are permitted to be Incurred at the time of reclassification;
(3) all Indebtedness outstanding on the Issue Date under the Credit Agreement shall be deemed initially Incurred on the Issue Date under Section 3.2(b)(1);
(4) in the case of any Refinancing Indebtedness, such Indebtedness shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or similar fees) Incurred in connection with the tender offer for all of such Capital Stockrefinancing;
(xii5) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) Guarantees of, or obligations in respect of letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the ordinary course determination of business provided that the a particular amount of Indebtedness shall not be included;
(6) if obligations under such in respect of letters of credit credit, bankers’ acceptances or other similar instruments are supported by Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to Section 3.2(a) or (b) and the letters of credit credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(7) the principal amount of any Disqualified Stock of Holdings, the Issuer or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(8) Indebtedness permitted by this covenant need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this covenant permitting such Indebtedness; and
(9) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined on the basis of GAAP. Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness, the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock or the reclassification of commitments or obligations not treated as Indebtedness due to a change in GAAP, will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 3.2. The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (ii) the principal amount of the Indebtedness, or liquidation preference thereof, in the case of any other Indebtedness. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of Holdings and the Issuer as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 3.2, Holdings and the Issuer shall be in default of this Section 3.2). For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness, the Dollar equivalent principal amount of Indebtedness denominated in a foreign currency shall be 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 support issued debt; provided, that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, 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 (a) the principal amount of such Indebtedness being refinanced plus (b) the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including, without limitation, tender premiums) and other costs and expenses (including, without limitation, original issue discount, upfront fees or provided under similar fees) Incurred in connection with such refinancing. Notwithstanding any other provision of this Section 3.2, the Credit Agreement;maximum amount of Indebtedness that Holdings, the Issuer or a Restricted Subsidiary may Incur pursuant to this Section 3.2 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred 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 Ref
Appears in 1 contract
Sources: Indenture (Infor, Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by that the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00 to 1.00, provided further that the aggregate principal amount of Indebtedness that may be Incurred pursuant to the foregoing by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed $150.0 million at any one time outstanding.
(b) Notwithstanding the foregoingforegoing Section 407(a), the Company and, to the extent specifically set forth below, the and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under the any Credit AgreementFacility, and guarantees by Guarantors (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof; provided, however, that in a maximum principal amount at any time outstanding not exceeding in the foregoing aggregate the amount shall be reduced by equal to (aA) $2,250.0 million plus (B) (x) the U.S. dollar equivalent greater of any loan notes referred $1,700.0 million and the Borrowing Base less (y) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Domestic Subsidiaries and then outstanding pursuant to in clause (xiix) of this Section 1008(b407(b), plus (C) not collateralized by cash in excess the event of $40,000,000 and (b) any refinancing of any such Indebtedness, the aggregate amount of Indebtedness fees, underwriting discounts, premiums and other costs and expenses incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company or (B) of the Company or any Restricted Subsidiary under to any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any such Indebtedness of the Company owing owed to a Restricted Subsidiary that is not a Subsidiary Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and shall be expressly subordinated in right of payment from and after such time as to all obligations of the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) obligor with respect to the payment Notes and performance of the Company's obligations under the Securities all Subsidiary Guarantees and to all Senior Indebtedness; provided, further, provided further that any disposition, pledge subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to a Person (other than a disposition, pledge or transfer to be a Restricted Subsidiary) shall be deemed to be an incurrence Subsidiary or any other subsequent transfer of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer except to the Company or a Restricted Subsidiary) shall will be deemed to be deemed, in each case, an incurrence Incurrence of such Indebtedness by the obligor issuer thereof not permitted by this clause (viii);
(viiiii) guarantees Indebtedness represented by the Notes issued on the Issue Date and the February 2013 Senior Unsecured Notes issued on February 1, 2013 (or, in each case, issued in respect thereof or in exchange therefor), any Indebtedness (other than the Indebtedness described in clause (i) or (ii) above) (subject to the last sentence of paragraph (c) below) outstanding on the Issue Date, and any Refinancing Indebtedness Incurred (or, in the case of any Restricted Subsidiary made Ratio Tested Committed Amount, established) in accordance with the provisions respect of Section 1013any Indebtedness (or unutilized commitments) described in this clause (iii) or paragraph (a) above;
(viiiiv) obligations of the Company or Purchase Money Obligations and Capitalized Lease Obligations, and any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in Refinancing Indebtedness with respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed thereto; provided that the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with Incurred to finance the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose Capital Stock of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount Person at any time outstanding pursuant to this clause (ix) shall not exceed an amount equal to exceed the greater of $35,000,000 outstanding at any time; provided that the principal amount 150.0 million and 3.0% of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedConsolidated Tangible Assets;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;
Appears in 1 contract
Sources: Indenture (Hd Supply, Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issueCreate, incur, assume, guarantee assume or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise suffer to exist (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence to “Incur”) any Indebtedness, except:
(a) Indebtedness of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.any Loan Document;
(b) Notwithstanding the foregoing, the Company and, Indebtedness owed to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):Borrower or any Subsidiary;
(ic) Indebtedness of purchase money Indebtedness, provided that the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xiithis subsection 7.2(c) of this Section 1008(b) in excess of shall not exceed $20,000,00050,000,000 at any one time outstanding;
(iid) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; Capital Lease Obligations, provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Capital Lease Obligations incurred pursuant to this subsection 7.2(d) shall not exceed $50,000,000 at any one time outstanding;
(e) Indebtedness then outstanding(other than any Subordinated Indebtedness and Senior Unsecured Indebtedness) outstanding on the Second Amendment Effective Date and listed on Schedule 7.2(e) and any refinancings, refundings, renewals or extensions thereof (b) under without any Currency Hedging Agreements, relating to increase in the principal amount thereof);
(i) Indebtedness Guarantee Obligations of the Company Borrower or any Restricted Subsidiary and/or of its Subsidiaries in respect of any Indebtedness permitted under this subsection 7.2 (other than Indebtedness incurred under clause (g) of this subsection 7.2, which shall be governed by such clause (g)), (ii) obligations to purchase or sell assets or properties, in each case, Guarantee Obligations incurred in the ordinary course of business of by the Company Borrower or any Restricted Subsidiary; providedof its Subsidiaries, howeverprovided that the Incurrence of such Guarantee Obligations could not reasonably be expected, that such Currency Hedging Agreements do not increase individually or in the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as aggregate, to have a result of fluctuations in foreign currency exchange rates or by reason of feesMaterial Adverse Effect, indemnities and compensation payable (iii) Guarantee Obligations permitted under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreementssubsection 7.8, and guarantees by Guarantors (iv) other Guarantee Obligations not to exceed $50,000,000 in respect thereofaggregate principal amount at any time outstanding;
(ixi) Subordinated Indebtedness of the Company Borrower, (ii) Senior Unsecured Indebtedness of the Borrower and (iii) Guarantee Obligations of any Subsidiary Guarantor in respect of Indebtedness referred to in clause (i) or (ii) of this subsection 7.2(g), provided that, at the time of Incurrence of such Indebtedness and Guarantee Obligations, the Consolidated Leverage Ratio as of the last day of the Test Period ending immediately prior to such Incurrence (adjusted on a pro forma basis to give effect to such Incurrence) shall not be less than 0.25: 1.00 below the Consolidated Leverage Ratio required under subsection 7.1(a) as of the last day of the Test Period ending immediately prior to such Incurrence; provided further that (A) at the time of incurrence of such Indebtedness and Guarantee Obligations, no Default or Event of Default shall have occurred and be continuing and (B) a Subsidiary Guarantor shall not guarantee any Subordinated Indebtedness unless such guarantee of Subordinated Indebtedness is subordinated to the guarantee of such Subsidiary Guarantor of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Indebtedness to which such guarantee relates;
(h) Indebtedness resulting from the endorsement of negotiable instruments in the ordinary course of business or arising from the honoring of a check, draft or similar instruments presented by the Borrower or a Subsidiary in the ordinary course of business against insufficient funds;
(i) Indebtedness in respect of any Interest Rate Protection Agreements;
(j) Indebtedness (i) of the Borrower or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with of its Subsidiaries to the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing seller representing all or any part of the purchase price in a Permitted Acquisition or cost any Asset Swap Transaction or (ii) assumed in connection with Permitted Acquisitions or Asset Swap Transactions, or any Indebtedness of construction any Person existing at the time such Person is merged with or improvement into or consolidated with, or becomes, a Loan Party or a Subsidiary of property used a Loan Party in connection with a Permitted Acquisition or Asset Swap Transaction, provided that such Indebtedness is not incurred in connection with or in contemplation of such other Person merging with or into, or becoming, a Loan Party or a Subsidiary of a Loan Party, and any refinancings, refundings, renewals or extensions of any Indebtedness referred to in this clause (j) (without any increase in the business principal amount thereof or overall collateral therefor or any change in the status of the Companyany subordinated Indebtedness), in each case in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding 75,000,000 at any time; provided that the principal amount time outstanding.
(k) [RESERVED];
(l) Indebtedness secured by Liens permitted under subsections 7.3(a), (b), (c), (d), (m) and (o);
(m) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, any Refinancing Indebtedness incurred to refinance, refund, extend or renew any Indebtedness originally permitted under clause (g) of this subsection 7.2 or this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;m); and
(xn) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) additional Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount (for the Borrower and all Subsidiaries) not to exceed $90,000,000 50,000,000 at any one time; (xiii) obligations in respect time outstanding, provided that, at the time of letters incurrence of credit such Indebtedness, no Default or other credit support provided by the Company Event of Default shall have occurred and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;be continuing.
Appears in 1 contract
Sources: Credit Agreement (Lin Tv Corp.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that (x) the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00 and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding clause (x) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed $150.0 million at any time outstanding.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other credit support than under any Credit Facility, and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $2,100 million plus (B) (x) the greater of $1,700.0 million and the Borrowing Base less (y) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Domestic Subsidiaries and then outstanding pursuant to subsection 7.1(b)(ix), plus (C) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower or (B) of the Borrower or any Restricted Subsidiary to any Restricted Subsidiary; provided that (x) any such Indebtedness owed to any Restricted Subsidiary that is not a Subsidiary Guarantor shall be expressly subordinated in right of payment to all obligations of the obligor with respect to the Term Loans and all Subsidiary Guarantees and provided further that (y) any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the Company issuer thereof not permitted by this subsection 7.1(b)(ii);
(iii) Indebtedness represented by the Senior Second Priority Notes, and its Restricted Subsidiaries the Senior Unsecured Notes issued on the Closing Date (or issued in respect thereof or in exchange therefor), any Indebtedness (other than the Indebtedness described in clause (i) or (ii) above) outstanding on the Closing Date, any Indebtedness represented by Senior Unsecured Notes issued in connection with the payment of PIK Interest (as defined in the ordinary course Senior Unsecured Notes Indenture) and any Refinancing Indebtedness Incurred in respect of business any Indebtedness described in this subsection 7.1(b)(iii) or subsection 7.1(a);
(iv) Purchase Money Obligations and Capitalized Lease Obligations, and any Refinancing Indebtedness with respect thereto; provided that the obligations under aggregate principal amount of such letters Purchase Money Obligations Incurred to finance the acquisition of Capital Stock of any Person at any time outstanding pursuant to this clause shall not exceed an amount equal to the greater of $150.0 million and 3.0% of Consolidated Tangible Assets;
(v) Indebtedness (A) supported by a letter of credit are supported by letters issued pursuant to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Borrower or any of its Restricted Subsidiaries;
(vi) (A) (i) Guarantees by the Borrower or any Restricted Subsidiary of Indebtedness or any other credit support issued obligation or provided under liability of the Credit AgreementBorrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the Borrower or such Restricted Subsidiary, as the case may be, in violation of this subsection 7.1), or (B) without limiting subsection 7.2, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the Borrower or such Restricted Subsidiary, as the case may be, in violation of this subsection 7.1);
Appears in 1 contract
Sources: Credit Agreement (Hd Supply, Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof (or, at the Company's Consolidated Fixed Charge Coverage Ratio for Borrower’s option, on the most recent four full fiscal quarters for which financial statements are available immediately preceding date of the incurrence initial borrowing of such Indebtedness taken as one period is at least or entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount, in which case such committed amount may thereafter be borrowed and reborrowed in whole or in part, from time to time, without further compliance with this proviso), the Consolidated Coverage Ratio would be equal to or greater than 2.00:12.00:1.00; provided, further, that the aggregate principal amount of Indebtedness that may be Incurred pursuant to this Subsection 8.1(a), by Restricted Subsidiaries that are not Subsidiary Guarantors or Escrow Subsidiaries shall not exceed the greater of $250,000,000 and 65.00% of Four Quarter Consolidated EBITDA at any time outstanding.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness Incurred by the Borrower, a Guarantor, an Escrow Subsidiary or (with respect to clause (b) below) a Canadian Subsidiary (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (d) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof), (e) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and any Refinancing Indebtedness in respect thereof and (f) pursuant to any Letter of Credit Facility (and any Refinancing Indebtedness in respect thereof), in a maximum principal amount for all such Indebtedness at any time outstanding not exceeding in the Company under aggregate an amount equal to the Company's Credit Agreement sum of (A) $1,870,000,000, plus (B) the greater of (x) $760,000,000 and (y) an amount equal to (but not less than zero) (1) the Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(ix), less (3) the aggregate principal amount of Indebtedness Incurred by any Foreign Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(xv)(ii), plus (C) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness”, in the event of any refinancing of any such Indebtedness (including any refinancing with Specified Refinancing Indebtedness), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (as defined including accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (II) Indebtedness Incurred by the Borrower, a Guarantor, an Escrow Subsidiary or (with respect to clause (b) below) a Canadian Subsidiary (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations, (d) constituting Rollover Indebtedness, (e) in respect of such IndebtednessPermitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and (f) pursuant to any Letter of Credit Facility, in an aggregate principal amount at for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to clause (i) of the definition of “Maximum Incremental Facilities Amount”, treating (x) any one time then unused portion of Incremental Revolving Commitments or Supplemental Revolving Commitments made available in reliance on such clause as outstanding not Indebtedness and (y) Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to exceed $920,000,000 in any case under the Credit Agreement or this Subsection 8.1(b)(i)(II) in respect of letters Indebtedness Incurred in reliance on clause (i) of credit under the Credit Agreement, definition of “Maximum Incremental Facilities Amount” (and guarantees by Guarantors Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect thereof; providedof such Refinancing Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), however, that together with Refinancing Indebtedness in respect of the foregoing amount shall be reduced by Indebtedness described in subclauses (a), (b), (c), (d), (e) the U.S. dollar equivalent of any loan notes referred to in clause and (xif) of this Section 1008(b) not collateralized by cash clause (II), plus, without duplication of incremental amounts included in excess the definition of $40,000,000 and “Refinancing Indebtedness”, in the event of any refinancing of such Indebtedness (b) including with Specified Refinancing Indebtedness), the aggregate amount of Indebtedness incurred pursuant to clause all fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower, or (B) of the Company Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) Indebtedness of represented by (A) the Company Senior Notes, (B) any Indebtedness (other than the Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsection 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness (or the Exchange Securitiesunutilized commitments) described in this Subsection 8.1(b)(iii) or Subsection 8.1(a);
(iv) Purchase Money Obligations, Financing Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person, at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $100,000,000 and not otherwise referred to in this definition 26.50% of "Permitted Indebtedness"Four Quarter Consolidated EBITDA;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of the Borrower or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business business, or (aB) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other purchase price adjustments, or similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of the Borrower or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an aggregate principal amount at any time outstanding not to exceed the greater of $140,000,000 and 37.00% of Four Quarter Consolidated EBITDA or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Borrower may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) the Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or assets Person, or any merger or consolidation of a any Person with or into the Borrower or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into the Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Borrower would have a Consolidated Total Leverage Ratio equal to or less than 6.30:1.00, (2) the Consolidated Total Leverage Ratio of the Borrower would equal or be less than the Consolidated Total Leverage Ratio of the Borrower immediately prior to giving effect thereto, (3) the Borrower could Incur at least $1.00 of additional Indebtedness pursuant to Subsection 8.1(a) or (4) the Consolidated Coverage Ratio of the Borrower would equal or be greater than the Consolidated Coverage Ratio of the Borrower immediately prior to giving effect thereto; provided, further, that if, at the Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection Contribution Indebtedness and any Refinancing Indebtedness with the tender offer for all of such Capital Stockrespect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of the Sytner Group plc shares of Disqualified Stock issued in accordance with Subsection 8.1(a), and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in Refinancing Indebtedness with respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreementthereto;
Appears in 1 contract
Sources: Cash Flow Credit Agreement (Cornerstone Building Brands, Inc.)
Limitation on Indebtedness. (a) The Company Parent Borrower will not, and will not cause or permit any of its Material Restricted Subsidiaries toSubsidiary to Incur any Indebtedness; provided, createhowever, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that (x) the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Parent Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00; and (y) the aggregate principal amount of Indebtedness Incurred pursuant to the preceding clause (x) by Restricted Subsidiaries that are not Subsidiary Guarantors shall not exceed the greater of $100.0 million and 7.5% of Consolidated Tangible Assets at any time outstanding.
(b) Notwithstanding the foregoingforegoing paragraph (a), the Company and, to the extent specifically set forth below, the Parent Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness Incurred pursuant to any Credit Facility (including but not limited to in respect of letters of credit or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than under any Credit Facility, and (without limiting the Company foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $3,500.0 million, plus (B) in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing, minus (C) the aggregate principal amount of Delayed Draw Term Loans (if any) classified by the Parent Borrower as Refinancing Indebtedness Incurred pursuant to clause 7.1(b)(iii) below to refinance any 2007 Notes or 2009 Notes, minus (D) the amount, if any, not borrowed under the Company's Credit Agreement (including any refinancing Delayed Draw Term Loan Commitments upon the termination thereof on the Delayed Draw Term Loan Commitment Termination Date (as defined belowin the Term Loan Credit Agreement);
(ii) Indebtedness (A) of any Restricted Subsidiary to the Parent Borrower or (B) of the Parent Borrower or any Restricted Subsidiary to any Restricted Subsidiary; provided, that any subsequent issuance or transfer of any Capital Stock of such IndebtednessRestricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Parent Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this subsection 7.1(b)(ii);
(A) Indebtedness Incurred pursuant to the Senior Interim Loan Facility in an aggregate principal amount at any one time outstanding not to exceed exceeding (x) $920,000,000 1,150.0 million, plus (y) any increase in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing principal amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred such Indebtedness attributable to accretion of accreted value or the payment of interest in clause the form of additional Indebtedness, plus (xiz) in the event of this Section 1008(b) not collateralized by cash in excess any refinancing of $40,000,000 and (b) any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing, (B) any Indebtedness incurred pursuant to (other than the Indebtedness described in clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) above) outstanding on the Closing Date and (C) any Refinancing Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness described in this subsection 7.1(b)(iii) or the Exchange Securitiessubsection 7.1(a) above;
(iv) Purchase Money Obligations and Capitalized Lease Obligations, and any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $125.0 million and not otherwise referred to in this definition 10.0% of "Permitted Indebtedness"Consolidated Tangible Assets;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Parent Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Parent Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Parent Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Parent Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this subsection 7.1), or (B) shall be deemed without limiting subsection 7.2, Indebtedness of the Parent Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Parent Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Parent Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (visubsection 7.1);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations Indebtedness of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company Parent Borrower or any Restricted Subsidiary (A) arising from the honoring of a check, draft or similar instrument drawn against fluctuations in interest rates insufficient funds, provided that such Indebtedness is extinguished within five Business Days of its Incurrence, or (B) consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business business, assets or assets of a Restricted SubsidiaryPerson;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiiviii) Indebtedness of the Sytner Group plc and Parent Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations Restricted Subsidiary in respect of (A) letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), or (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, including in respect of liabilities or obligations of franchisees or (C) Hedging Obligations, entered into for bona fide hedging purposes, or (D) Management Guarantees or Management Indebtedness, or (E) the financing of insurance premiums in the ordinary course of business, or (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, or (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Parent Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to the obligations Parent Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Parent Borrower or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Parent Borrower as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this subsection 7.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Parent Borrower may classify such Indebtedness in whole or in part as Incurred under this subsection 7.1(b)(ix);
(x) [Reserved];
(xi) Indebtedness of the Parent Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to (A) (1) the Foreign Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this subsection 7.1(b) plus (B) in the event of any refinancing of any Indebtedness Incurred under this clause (xi), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(xii) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of (A) the Parent Borrower or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Parent Borrower or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the Parent Borrower or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Parent Borrower would have a Consolidated Total Leverage Ratio equal to or less than 7.25:1 or (2) the Consolidated Total Leverage Ratio of the Parent Borrower would equal or be less than the Consolidated Total Leverage Ratio of the Parent Borrower immediately prior to giving effect thereto; and any Refinancing Indebtedness with respect to any such Indebtedness;
(xiv) Indebtedness of the Parent Borrower or any Restricted Subsidiary Incurred as consideration in connection with, or otherwise to finance, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Parent Borrower or any Restricted Subsidiary and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding $75.0 million; and
(xv) Indebtedness of the Parent Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $150.0 million and 11.25% of Consolidated Tangible Assets.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this subsection 7.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this subsection 7.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in subsection 7.1(b) above, the Parent Borrower, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of such clauses (including in part under one such clause and in part under another such clause); provided, that any Indebtedness Incurred pursuant to clause (b)(xv) of this subsection 7.1 or clause (b)(iv) of this subsection 7.1 as limited by the proviso thereto, shall, at the Parent Borrower’s election, cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of paragraph (a) of this subsection 7.1 from and after the first date on which such Restricted Subsidiary could have Incurred such Indebtedness under paragraph (a) of this subsection 7.1 without reliance on such clause; and (iii) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP.
(d) For purposes of determining compliance with any Dollar-denominated restriction on the Incurrence of Indebtedness denominated in a foreign currency, the Dollar-equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of any revolving credit Indebtedness, provided that (x) the Dollar-equivalent principal amount of any such Indebtedness outstanding on the Closing Date shall be calculated based on the relevant currency exchange rate in effect on the Closing Date, (y) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness so being Incurred), 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 (whichever is higher) of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing and (z) the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency and Incurred pursuant to a Senior Credit Facility shall be calculated based on the relevant currency exchange rate in effect on, at the Parent Borrower’s option, (i) the Closing Date, (ii) any date on which any of the respective commitments under such letters Senior Credit Facility shall be reallocated between or among facilities or subfacilities hereunder or thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (iii) the date of credit are supported by letters such Incurrence. The principal amount of credit or any Indebtedness Incurred to refinance other credit support issued or provided under Indebtedness, if Incurred in a different currency from the Credit Agreement;Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Neither the Issuer nor the Restricted Subsidiaries toshall Incur, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur")indirectly, any Indebtedness (including any Acquired Indebtedness); provided, unless such Indebtedness is incurred by that the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, Issuer and the Restricted Subsidiaries may incur each and Incur any or all of the following Indebtedness:
(collectivelya) Indebtedness under the Senior Credit Facility not to exceed (i) $135,600,000 plus the aggregate face amount of the Existing Letters of Credit then outstanding and issued thereunder, less (ii) all principal payments required to be made from and after the "Permitted Indebtedness"):Issue Date under the terms of the Senior Credit Facility or this Indenture, including, but not limited to, payments made pursuant to Section 2.3 and 2.6 of the Senior Credit Agreement and payments made pursuant to Section 5.19, but excluding repayments of a revolving credit facility not resulting in a permanent reduction of commitments thereunder plus (iii) with respect to any Senior Credit Facility other than the original Senior Credit Facility, reasonable legal fees and expenses and other reasonable transaction costs related to any refinancing of such Senior Credit Facility, in an amount not to exceed $1,000,000;
(i) Indebtedness of the Company under Issuer owed to and held by a Subsidiary, (ii) Indebtedness of a Subsidiary Guarantor owed to and held by the Company's Credit Agreement Issuer or a Subsidiary, (including iii) Indebtedness of a Non-Guarantor Subsidiary owed to and held by a Non-Guarantor Subsidiary, or (iv) Indebtedness of any refinancing (as defined below) of such Indebtedness) in an Non-Guarantor Subsidiary that is owed to and held by the Issuer or a Subsidiary Guarantor; provided, the aggregate principal amount at any one time outstanding not owed by all Non-Guarantor Subsidiaries to exceed $920,000,000 the Issuer and the Subsidiary Guarantors, together with Investments in any case such Non-Guarantor Subsidiaries permitted under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xii)(B) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
Investment" that are not Indebtedness and only to the extent such Investments have not been repaid in cash, shall not at any time exceed $15,000,000; provided, further that (vx) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted any Non-Guarantor Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than PANY or any of its Subsidiaries for so long as PANY is not required to be a disposition, pledge Subsidiary Guarantor hereunder) held by the Issuer or transfer a Subsidiary Guarantor shall not be designated as subordinated to a Restricted Subsidiary) any other Indebtedness of such Non-Guarantor Subsidiary and shall be deemed evidenced by a promissory note pledged to be an incurrence of the Collateral Trustee under the Collateral Documents, provided that such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing may be designated as subordinated to the Company extent deemed necessary, in the reasonable business judgment of the Issuer or another Restricted such Subsidiary Guarantor, to deliver a comfort letter with respect to such Non-Guarantor Subsidiary; provided that and (y) at any such time a Default or Event of Default has occurred and is continuing Indebtedness is made pursuant to an intercompany note in may only be incurred by a Non-Guarantor Subsidiary from the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company Issuer or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection consistent with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, past practices in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed an additional $90,000,000 at any one time; 2,500,000 after such Default or Event of Default has occurred and is continuing and in no event to exceed the aggregate amount set forth in clause (xiiix) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreementabove;
Appears in 1 contract
Sources: Indenture (Panavision Inc)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, create, issue, incur, assume, guarantee or otherwise in Incur any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing Company or any Restricted Subsidiary may Incur Indebtedness if on the date of the Incurrence of such Indebtedness, after giving effect to the Incurrence thereof, the Consolidated Coverage Ratio would be equal to or greater than 2.00 to 1.00; provided, further, however, that any Non-Guarantor Subsidiary may Incur Indebtedness under this Section 407(a) in an aggregate principal amount shall any time outstanding not to exceed the greater of (x) $500.0 million and (y) 50.0% of LTM EBITDA.
(b) Notwithstanding Section 407(a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(i) Indebtedness Incurred pursuant to any Debt Facility (including but not limited to in respect of letters of credit, bank guarantees or bankers’ acceptances) and (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof, in a maximum principal amount at any time outstanding not exceeding in the aggregate the greater of (I) $1,750.0 million and (II) an amount of Indebtedness Incurred if, on the date of the Incurrence of such Indebtedness (other than any Refinancing Indebtedness), on a Pro Forma Basis after giving effect to such Incurrence (or, at the Company’s option, on the date of the entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness (such committed amount, a “Ratio Tested Committed Amount”), in which case such Ratio Tested Committed Amount may thereafter be reduced borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this Section 407), the Consolidated Secured Net Leverage Ratio would be equal to or less than 1.50 to 1.00, and (in the case of this subclause (II)) the Incurrence of any Refinancing Indebtedness with respect to any Indebtedness Incurred in reliance on this subclause (II) (including any Indebtedness in respect of a Ratio Tested Committed Amount);
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company, or (B) of the Company or any Restricted Subsidiary to any Restricted Subsidiary; provided that, in the case of this Section 407(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Company or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Section 407(b)(ii);
(iii) Indebtedness represented by (a) the U.S. dollar equivalent Notes (other than Additional Notes), (b) the Existing Company Notes, (c) the Existing Xerox Corp. Notes, (d)(x) the 2030 Convertible Notes outstanding on the Issue Date and (y) an additional principal amount of 2030 Convertible Notes issued and sold to the initial purchasers in the Concurrent Convertible Notes Offering in an amount not to exceed the Concurrent Convertible Notes Overallotment Amount and (e) any other Indebtedness (other than the Indebtedness under any Debt Facility Incurred pursuant to Section 407(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding (other than any revolving credit commitments outstanding on the Issue Date)) on the Issue Date and any Refinancing Indebtedness Incurred in respect of any loan notes referred to Indebtedness (or unutilized commitments) described in clause (xi) of this Section 1008(b407(b)(iii) or Section 407(a);
(iv) Purchase Money Obligations and Finance Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto, (A) outstanding on the Issue Date and (B) in an additional aggregate principal amount at any time outstanding not collateralized by cash in excess exceeding an amount equal to the greater of (a) $40,000,000 300.0 million and (b) 30.0% of LTM EBITDA;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Debt Facility in a principal amount not exceeding the aggregate face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of Indebtedness incurred pursuant to clause or any other obligation or liability of the Company or any Restricted Subsidiary (xii) other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 1008(b407), or (B) without limiting Section 413, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in excess violation of $20,000,000this Section 407);
(iivii) Indebtedness of the Company or any Restricted Subsidiary under (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business, or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any Inventory Facilitybusiness, assets or Person;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(ivviii) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition respect of "Permitted Indebtedness";
(vA) Indebtedness letters of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturitycredit, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; providedbank guarantees, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company bankers’ acceptances or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing similar instruments or obligations issued, or relating to the Company liabilities or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; providedobligations incurred, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant including those issued to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations governmental entities in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstandingconnection with self-insurance under applicable workers’ compensation statutes), (bB) under any Currency Hedging Agreementscompletion guarantees, surety, judgment, appeal, stay, bid, customs or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to (i) Indebtedness of the Company liabilities or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or propertiesincurred, in each casethe ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business, (C) Hedging Obligations, (D) the financing of insurance premiums in the ordinary course of business, (E) take-or-pay obligations under supply arrangements incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;business,
Appears in 1 contract
Sources: Indenture (Xerox Corp)
Limitation on Indebtedness. (a) The Company Holdings will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company that Holdings or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Holdings and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness Incurred by the Loan Parties (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (c) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof), (d) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and any Refinancing Indebtedness in respect thereof and (e) pursuant to the Company Senior ABL Facility, in a maximum principal amount for all such Indebtedness at any time outstanding under this clause (b)(i)(I) not exceeding in the Company's Credit Agreement aggregate the amount equal to the sum of (A) $2,330.0 million plus (B) the greater of (x) $1,900.0 million and (y) an amount equal to (1) the North American Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(ix), plus (C) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness,” in the event of any refinancing of any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including any refinancing accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (as defined belowII) Indebtedness Incurred by the Loan Parties (a) pursuant to this Agreement and the other Loan Documents, (b) constituting Additional Obligations, (c) constituting Rollover Indebtedness and (d) in respect of such Indebtedness) Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9, in an aggregate principal amount at any one time for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to exceed $920,000,000 in any case under clause (i) of the Credit Agreement or definition of “Maximum Incremental Facilities Amount,” treating Additional Obligations, Refinancing Indebtedness, Rollover Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect of letters Indebtedness Incurred in reliance on clause (i) of credit under the Credit Agreement, definition of “Maximum Incremental Facilities Amount” (and guarantees by Guarantors Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect thereof; providedof such Additional Obligations, howeverRefinancing Indebtedness, that Rollover Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), together with Refinancing Indebtedness in respect of the foregoing amount shall be reduced by Indebtedness described in subclauses (a), (b) the U.S. dollar equivalent of any loan notes referred to in clause (xic) and (d) of this Section 1008(b) not collateralized by cash clause (II), plus, without duplication of incremental amounts included in excess the definition of $40,000,000 and (b) “Refinancing Indebtedness,” the aggregate amount of Indebtedness incurred pursuant to clause all fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such Refinancing Indebtedness;
(ii) Indebtedness (A) of the Company any Restricted Subsidiary to Holdings, or (B) of Holdings or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to Holdings or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) (A) Indebtedness of represented by the Company Senior Notes, (B) any Indebtedness (other than the Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsections 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness (or the Exchange Securitiesunutilized commitments) described in this Subsection 8.1(b)(iii) or Subsection 8.1(a);
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the Company or acquisition of Capital Stock of any Restricted Subsidiary Person, at any time outstanding on pursuant to this clause shall not exceed an amount equal to the initial Issue Date greater of $300.0 million and not otherwise referred to in this definition 5.0% of "Permitted Indebtedness"Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence face amount of such Indebtedness by letter of credit or (B) consisting of accommodation guarantees for the Company benefit of trade creditors of Holdings or other obligor not permitted by this clause (v)any of its Restricted Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by Holdings or any Restricted Subsidiary owing to the Company of Indebtedness or another any other obligation or liability of Holdings or any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by Holdings or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of Holdings or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of Holdings or any Restricted Subsidiary (other than any Indebtedness Incurred by Holdings or such Indebtedness by Restricted Subsidiary, as the obligor not permitted by case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of Holdings or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of provided that such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred is extinguished in the ordinary course of business business), or (B) consisting of the Company or any Restricted Subsidiary; providedguarantees, howeverindemnities, that such Currency Hedging Agreements do not increase the Indebtedness obligations in respect of earnouts or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business, assets or Person;
(viii) Indebtedness of Holdings or any Restricted Subsidiary in respect of (A) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which Holdings or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in an aggregate principal amount at any time outstanding not to exceed the greater of $250.0 million and 4.50% of Consolidated Total Assets or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness is not recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to Holdings or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by Holdings as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Subsection 8.1 for so long as such Indebtedness shall be so recourse; and (3) in the event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), Holdings may classify such Indebtedness in whole or in part as Incurred under this Subsection 8.1(b)(ix);
(x) Indebtedness of (A) Holdings or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or assets Person, or any merger or consolidation of a any Person with or into Holdings or any Restricted Subsidiary; or (B) any Person that is acquired by or merged or consolidated with or into Holdings or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation), provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) Holdings would have a Consolidated Total Leverage Ratio equal to or less than 5.00:1.00 or (2) the Consolidated Total Leverage Ratio of Holdings would equal or be less than the Consolidated Total Leverage Ratio of Holdings immediately prior to giving effect thereto; provided, further, that if, at Holdings’ option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness, pro forma effect is given to the Incurrence of the entire committed amount of such Indebtedness, such committed amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause (x); and any Refinancing Indebtedness with respect to any such Indebtedness;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection Contribution Indebtedness and any Refinancing Indebtedness with the tender offer for all of such Capital Stockrespect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of the Sytner Group plc shares of Disqualified Stock issued in accordance with Subsection 8.1(a), and any Refinancing Indebtedness with respect thereto;
(xiii) Indebtedness of its Subsidiaries Holdings or any Restricted Subsidiary in an aggregate principal amount not to exceed $90,000,000 at any one timetime outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets;
(xiv) Indebtedness of Holdings or any Restricted Subsidiary Incurred as consideration in connection with any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into Holdings or any Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets; and
(xiiixv) obligations Indebtedness of any Foreign Subsidiary (other than a Loan Party) in an aggregate principal amount at any time outstanding not exceeding an amount equal to (I) the greater of (x) $400.0 million and (y) 7.0% of Foreign Consolidated Total Assets plus (II) an amount equal (but not less than zero) to (A) the Foreign Borrowing Base less the Foreign Borrowing Base as calculated on March 31, 2015 less (B) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to clause (ix) of this paragraph (b) in excess of the amount set forth in the immediately preceding clause (A) plus (III) in the event of any refinancing of any Indebtedness Incurred under this clause (xv), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing.;
(xvi) Indebtedness arising under a declaration of joint and several liability used for the purpose of article 2:403 of the Dutch Civil Code (Burgerlijk Wetboek, “DCC”) in respect of letters Dutch Loan Parties (and any residual liability under such declaration arising pursuant to article 2:404(2) DCC); and
(xvii) with due observance of credit Subsection 7.14, Indebtedness arising as a result of a fiscal unity (fiscale eenheid) for Dutch Tax purposes to the extent permitted by law.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Subsection 8.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Subsection 8.1) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other credit support provided by similar instrument or obligation supporting such Indebtedness shall be disregarded to the Company and its Restricted Subsidiaries extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the ordinary course event that Indebtedness Incurred pursuant to Subsection 8.1(b) meets the criteria of business more than one of the types of Indebtedness described in Subsection 8.1(b), Holdings, in its sole discretion, shall classify and reclassify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses of Subsection 8.1(b) (including in part under one such clause and in part under another such clause); provided that (if Holdings shall so determine) any Indebtedness Incurred pursuant to Subsections 8.1(b)(iv), 8.1(b)(vii), 8.1(b)(xiii), 8.1(b)(xiv) or 8.1(b)(xv) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the obligations purposes of Subsection 8.1(a) from and after the first date on which Holdings or any Restricted Subsidiary could have Incurred such Indebtedness under Subsection 8.1(a) without reliance on such letters clause; (iii) in the event that Indebtedness could be Incurred in part under Subsection 8.1(a), Holdings, in its sole discretion, may classify and reclassify a portion of credit are supported such Indebtedness as having been Incurred under Subsection 8.1(a) and the remainder of such Indebtedness as having been Incurred under Subsection 8.1(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of Indebtedness outstanding under any subclause of Subsection 8.1(b), including for purposes of any determination of the “Maximum Incremental Facilities Amount,” shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness, (vi) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on a basket measured by letters reference to a percentage of credit Consolidated Total Assets at the time of Incurrence or Foreign Consolidated Total Assets at the time of Incurrence, and such refinancing would cause the percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, restriction to be exceeded if calculated based on the Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, on the date of such refinancing, such percentage of Consolidated Total Assets restriction shall not be deemed to be exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other credit support issued costs and expenses (including accrued and unpaid interest) Incurred or provided under the Credit Agreement;pay
Appears in 1 contract
Limitation on Indebtedness. (a) The Company Parent Borrower will not, and will not cause permit any Material Restricted Subsidiary to, directly or permit indirectly create, incur, assume or otherwise become directly or indirectly liable with respect to any Indebtedness except for the following:
(a) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for incurred (1) pursuant to this Agreement and the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness other Loan Documents (including any Acquired Indebtedness), unless such Incremental Facility) and (2) any Refinancing Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.respect thereof;
(b) Notwithstanding Indebtedness outstanding, or incurred under facilities in existence, on the foregoingRestatement Effective Date and listed on Schedule 8.1, and any Refinancing Indebtedness in respect thereof;
(c) Guarantee Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that such Guarantee Obligations in respect of Indebtedness permitted pursuant to clause (i) shall be permitted only to the extent that such Guarantee Obligations are incurred by Guarantors or Foreign Subsidiaries (other than Canadian Subsidiaries) that are not Guarantors;
(ii) the Parent Borrower or any of its Restricted Subsidiaries in respect of lease obligations of Subsidiaries that are not Loan Parties (to the extent such lease obligations constitute Indebtedness);
(iii) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(iv) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person; provided that the aggregate amount at any time outstanding of such Guarantee Obligations incurred pursuant to this clause (iv), when aggregated with the amount of all Indebtedness incurred and outstanding pursuant to clause (t) of this subsection 8.1, shall not exceed the greater of (x) $100,000,000 and (y) the amount equal to 4.00% of Consolidated Total Assets at the time of such Guarantee Obligations being incurred, and any Refinancing Indebtedness in respect thereof;
(v) [reserved]; AmericasActive:15540830.1218080089.6
(vi) the Parent Borrower or any of its Restricted Subsidiaries consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) the Parent Borrower or any of its Restricted Subsidiaries in respect of Investments permitted pursuant to clause (l), (m) or (u) of the definition of “Permitted Investments”;
(viii) the Parent Borrower or any of its Restricted Subsidiaries in respect of (x) Management Guarantees and (y) third-party loans and advances to officers or employees of any Parent or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clause (l) or (m) of the definition of “Permitted Investments”;
(ix) the Parent Borrower or any of its Restricted Subsidiaries in respect of Reimbursement Obligations in respect of Letters of Credit or with respect to reimbursement obligations in respect of any other letters or credit permitted under this Agreement;
(x) the Parent Borrower or any of its Restricted Subsidiaries in respect of performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of credit, bankers’ acceptances or similar instruments or obligations, all in, or relating to liabilities or obligations incurred in, the Company ordinary course of business; and
(xi) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness or other obligations of a Person (other than Holding, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which the aggregate outstanding amount of all such Indebtedness, together with the aggregate outstanding amount of Investments permitted pursuant to clauses (q), (j)(b) and (u) of the definition of “Permitted Investments”, does not exceed $75,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations hereunder or is secured by Liens that are subordinate to any Liens securing the Collateral, then any corresponding Guarantee Obligations shall be subordinated and the Liens securing the corresponding Guarantee Obligations shall be subordinate to substantially the same extent;
(d) (x) Purchase Money Obligations, Capitalized Lease Obligations and other Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided that the aggregate principal amount of any such Purchase Money Obligations, Capitalized Lease Obligations and other Indebtedness at any time outstanding pursuant to this clause (d) shall not exceed an amount equal to the greater of (1) $150,000,000 and (2) 5.50% of Consolidated Total Assets and (y) in each case under this clause (d) any Refinancing Indebtedness in respect thereof;
(e) (i) factoring arrangements of any Foreign Subsidiary (other than a Canadian Subsidiary) in respect of its assets, to the extent specifically set forth belowsuch factoring arrangements constitute Indebtedness, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(iii) any other Indebtedness of the Company under the Company's Credit Agreement any Foreign Subsidiary (including any refinancing (as defined below) of such Indebtednessother than a Canadian Subsidiary) in an aggregate principal amount at any one time outstanding not to exceed exceeding the greater of (x) $920,000,000 75,000,000 and (y) 3.00% of Consolidated Total Assets plus, in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent event of any loan notes referred to in refinancing of any Indebtedness incurred under this clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) e)(ii), the aggregate amount of Indebtedness fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred pursuant to clause (xii) of this Section 1008(b) or payable in excess of $20,000,000connection with such refinancing;
(iif) Indebtedness of the Company Parent Borrower or any Restricted Subsidiary to Holding or the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by subsection 8.5; AmericasActive:15540830.1218080089.6
(g) Indebtedness incurred under any Inventory Facilityagreement pursuant to which a Person provides cash management services or similar financial accommodations to the Parent Borrower or any of its Restricted Subsidiaries (including any Bank Products Agreements);
(h) Indebtedness constituting indemnities, obligations in respect of earnouts or other purchase price adjustments (including pension plan adjustments and contingent payments adjustments), or similar obligations under the Contribution Agreement or the Merger Agreement or under any agreement entered into in connection with any Permitted Acquisition or disposition;
(i) (x) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is not secured by ABL Priority Collateral (except for junior Liens effected pursuant to the Base Intercreditor Agreement), (ii) the Parent Borrower would be in compliance, on a pro forma basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with subsection 8.9 recomputed as of the last day of the most recently ended fiscal quarter of the Parent Borrower for which financial statements are available, whether or not compliance with subsection 8.9 is otherwise required at such time (it being understood that, as a condition precedent to the effectiveness of any such incurrence or assumption, the Borrower Representative shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Default or Event of Default has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity or amortization rate greater than 2.5% per annum prior to the date that is 91 days after the Maturity Date (other than (1) mandatory prepayments with proceeds of and exchanges for refinancing Indebtedness in respect thereof permitted hereunder or (2) an earlier maturity date and/or higher amortization rate for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or an amortization rate greater than 2.5% per annum prior to the date that is 91 days after the Maturity Date and other mandatory prepayments with proceeds of and exchanges for refinancing Indebtedness in respect thereof permitted hereunder); it being understood that, in the event that any such Indebtedness incurred under this subsection 8.1(i) is incurred in good faith to finance the purchase price of any such acquisition in advance of the closing of such acquisition, and such closing shall thereafter not occur and such Indebtedness (or an equal principal amount of other Indebtedness) is redeemed, repaid or otherwise retired promptly after the Borrower Representative determines that such transaction has been abandoned, such Indebtedness shall be deemed to comply with this subsection 8.1(i) and (y) any Refinancing Indebtedness in respect thereof;
(j) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company Parent Borrower or any of its Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred Subsidiaries incurred to finance insurance premiums or consisting of take-or-pay obligations contained in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note supply arrangements, in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into each case in the ordinary course of business business;
(ak) pursuant to Interest Rate Agreements designed to protect Indebtedness arising from the Company honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(l) Indebtedness of the Parent Borrower or any of its Restricted Subsidiary against fluctuations in interest rates Subsidiaries in respect of Capitalized Lease Obligations which have been funded solely by Investments of the Parent Borrower and its Restricted Subsidiaries permitted under clause (r) of the definition of “Permitted Investments”;
(m) (x) Indebtedness of the Company Parent Borrower or any of its Restricted Subsidiaries arising in connection with industrial development or revenue bonds or similar obligations secured by property or assets leased to and operated by the Parent Borrower or such Restricted Subsidiary as long as that were issued in connection with the financing or refinancing of such obligations do not exceed property or assets; provided that the aggregate principal amount of such Indebtedness then outstanding, outstanding at any time shall not exceed $100,000,000 and (by) under any Currency Hedging Agreements, relating to Refinancing Indebtedness in respect thereof; AmericasActive:15540830.1218080089.6
(in) Indebtedness of the Company Parent Borrower or any of its Restricted Subsidiary and/or Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(o) accretion of the principal amount of Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries otherwise permitted hereunder issued at any original issue discount;
(p) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Agreements, Currency Agreement or Commodities Agreement and other Hedging Obligations to the extent and only to the extent that, such agreements or arrangements are entered into, purchased or otherwise acquired other than for purposes of speculation;
(q) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(r) Indebtedness in respect of any letters of credit issued in favor of any Issuing Lender or any Swing Line Lender to support any Defaulting Lender’s participation in Letters of Credit or Swing Line Loans as provided for in subsection 3.4, in each case to the extent not exceeding the maximum amount of such participations;
(s) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit;
(t) (x) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries; provided that the aggregate principal amount outstanding at any time of such Indebtedness incurred or assumed pursuant to this clause (t), when aggregated with the principal amount of all Guarantee Obligations incurred and outstanding pursuant to subsection 8.1(c)(iv), shall not exceed the greater of (i) $100,000,000 and (ii) the amount equal to 4.00% of the Consolidated Total Assets at the time of incurrence of such Indebtedness and (y) any Refinancing Indebtedness in respect thereof;
(u) Indebtedness in respect of performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations, letters of credit, bankers’ acceptances or similar instruments or obligations, and take-or-pay obligations under supply arrangements, all provided in, or relating to purchase liabilities or sell assets or propertiesobligations incurred in, the ordinary course of business, including those issued to government entities in each caseconnection with self-insurance under applicable workers’ compensation statutes;
(v) Indebtedness representing deferred compensation to employees of Holding, the Parent Borrower and the Restricted Subsidiaries incurred in the ordinary course of business business;
(w) Indebtedness (A) of any Special Purpose Subsidiary secured by a Lien on all or part of the Company assets disposed of in, or any Restricted Subsidiaryotherwise incurred in connection with, a Financing Disposition or (B) otherwise incurred in connection with a Special Purpose Financing; provided, however, provided that (1) such Currency Hedging Agreements do Indebtedness is not increase recourse to the Indebtedness or other obligations of the Company Parent Borrower or any Restricted Subsidiary outstanding that is not a Special Purpose Subsidiary (other than as a result of fluctuations with respect to Special Purpose Financing Undertakings), (2) in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under the event such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase Indebtedness shall become recourse to the amount of Indebtedness or other obligations of the Company Parent Borrower or any Restricted Subsidiary outstanding that is not a Special Purpose Subsidiary (other than as a result of fluctuations in commodity prices with respect to Special Purpose Financing Undertakings), such Indebtedness is permitted by one or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness more of the Company or other provisions of this subsection 8.1 for so long as such Indebtedness shall be so recourse and (3) in the event that at any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - time thereafter such Indebtedness incurred or assumed in connection shall comply with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part provisions of the purchase price or cost of construction or improvement of property used in the business of the Companypreceding subclause (1), in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any such Indebtedness shall be permitted under this clause (ixw) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedsubsection 8.1;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and Parent Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect borrowed against the cash surrender value of letters of credit or other credit support provided the life insurance policies and executive split dollar life insurance policies owned by the Company Parent Borrower on the lives of certain present and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;former employees of
Appears in 1 contract
Sources: Abl Credit Agreement (Veritiv Corp)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal any Loan Party pursuant to or greater than 2.00:1.any Loan Document;
(b) Notwithstanding Indebtedness of (i) the foregoingBorrower to any Subsidiary, (ii) any Subsidiary Guarantor to the Borrower or any other Subsidiary, (iii) any Subsidiary that is not a Subsidiary Guarantor to the Borrower or any Subsidiary Guarantor in an amount not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets outstanding at any one time, and (iv) any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor;
(c) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 6.3(g); provided that the aggregate principal amount of such Indebtedness, plus the aggregate principal amount of Indebtedness permitted by Section 6.2(h), shall not at any time exceed $40,000,000 outstanding;
(d) Indebtedness outstanding on the Closing Date and listed on Schedule 6.2(d) and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof or any shortening of the maturity of any principal amount thereof, except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith);
(e) Guarantee Obligations made in the ordinary course of business by (i) the Borrower or any of its Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor, (ii) the Borrower or any of its Subsidiaries of obligations of any Subsidiary that is not a Subsidiary Guarantor in an amount not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets outstanding at any time and (iii) any Subsidiary that is not a Subsidiary Guarantor of the obligations of any other Subsidiary that is not a Subsidiary Guarantor;
(f) (i) Indebtedness of the Borrower in respect of the Senior Notes and the New Senior Notes, (ii) Guarantee Obligations of any Subsidiary Guarantor in respect of such Indebtedness, (iii) Indebtedness of the Borrower that refinances the Senior Notes, the Company andNew Senior Notes and Guarantee Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the maturity date of such refinancing Indebtedness shall be no earlier than six months after the Latest Maturity Date, (B) the terms of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable to the extent specifically Borrower and the Subsidiary Guarantors than the terms of the Senior Notes or the New Senior Notes and (C) the principal amount of such refinancing Indebtedness does not exceed the principal amount of Senior Notes or New Senior Notes, as applicable, refinanced thereby except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith and (iv) Indebtedness of the Borrower that refinances Indebtedness incurred in accordance with clause (iii) above and this clause (iv) and Guarantee Obligations of any Subsidiary Guarantor in respect of such refinancing Indebtedness; provided that (A) the maturity date of such refinancing Indebtedness shall be no earlier than six months after the maturity date of such Indebtedness incurred in accordance with clause (iii) above, (B) the terms of such refinancing Indebtedness, taken as a whole, shall not be materially less favorable to the Borrower and the Subsidiary Guarantors than the terms of such Indebtedness incurred in accordance with clause (iii) above and (C) the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness incurred in accordance with clause (iii) above, except by an amount equal to a reasonable premium or other similar amount paid, and fees and expenses reasonably incurred, in connection therewith;
(g) Indebtedness of the Borrower or its Subsidiaries incurred to finance the acquisition (including, without limitation, by way of merger) of Capital Stock of any Person engaged in, or assets used or useful in, a business permitted pursuant to Section 6.15; provided that (i) such Indebtedness does not mature or have scheduled amortization or payments of principal prior to the date that is 91 days after the Latest Maturity Date at the time such Indebtedness is incurred, (ii) both immediately prior and after giving effect to the incurrence thereof, no Default or Event of Default shall exist or would result therefrom, (iii) the Borrower shall be in pro forma compliance with the financial covenants set forth below, in Section 6.1 after giving effect to such incurrence of Indebtedness (determined on the Restricted Subsidiaries may incur each and all assumption that such incurrence of Indebtedness had occurred on the first day of the following relevant period measured by such covenants), (collectivelyiv) such Indebtedness is not also incurred by or guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors and is not incurred by or guaranteed by any other Person and (v) if such Indebtedness is secured, (A) such Indebtedness is secured by the "Permitted Collateral (or a portion thereof) on a second lien, subordinated basis to the Obligations and is not secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral (or a portion thereof), (B) the security agreements relating to such Indebtedness are substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent; provided that such differences are not more favorable to the investors in such secured Indebtedness"):) and (C) an agent or representative acting on behalf of the holders of such Indebtedness shall have executed and delivered the Second Lien Intercreditor Agreement or an accession thereto in form and substance satisfactory to the Administrative Agent;
(h) Indebtedness secured by Liens permitted by Section 6.3(l); provided that the aggregate principal amount of such Indebtedness, plus the aggregate principal amount of Indebtedness permitted by Section 6.2(c), shall not at any time exceed $40,000,000 outstanding;
(i) Indebtedness of the Company under Borrower or its Subsidiaries arising from the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees honoring by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company bank or other obligor not permitted by this clause (v);
(vi) Indebtedness financing institution of a Restricted Subsidiary owing to the Company check, draft or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into similar instrument inadvertently drawn against insufficient funds in the ordinary course of business business;
(a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (ij) Indebtedness of the Company Borrower or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or propertiesits Subsidiaries arising from agreements providing for indemnification, in each case, incurred in the ordinary course adjustment of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business business, assets or a Subsidiary, other than the guaranties 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 of its Subsidiaries (contingent obligations referred to in a Restricted Subsidiaryfootnote to financing statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (i)) and (ii) 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 Borrower and its Subsidiaries in connection with such disposition;
(xik) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) subordinated Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount at any time outstanding not to exceed $90,000,000 5,000,000 issued to directors, officers or employees of the Borrower or any of its Subsidiaries in connection with the redemption or purchase of Capital Stock that is not secured by any assets of the Borrower or any of its Subsidiaries, does not require cash payments prior to the stated maturity of the Senior Notes or the New Senior Notes and contains subordination terms reasonably acceptable to the Administrative Agent;
(l) Indebtedness of the Borrower consisting of outstanding Permitted Foreign Currency Letters of Credit, the Dollar Equivalent of which shall not exceed $20,000,000 in aggregate principal amount as of the most recent Calculation Date;
(m) Credit Agreement Refinancing Indebtedness; and
(n) other Indebtedness, not included in clauses (a) through (m) above, not to exceed the greater of $50,000,000 or 2.00% of Consolidated Total Assets in an aggregate principal amount (or accreted value, as applicable) at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;time outstanding.
Appears in 1 contract
Sources: Credit Agreement (B&G Foods, Inc.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, createCreate, issue, incur, assume, guarantee permit or otherwise suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Finance Document;
(b) Indebtedness (i) of the Borrower to Superholdings, Holdings or any Restricted Subsidiary and of any Subsidiary Guarantor to Superholdings, Holdings, the Borrower or to any other Restricted Subsidiary, provided that any such Indebtedness owing by the Borrower or a Subsidiary Guarantor to a Non-Guarantor Subsidiary is expressly subordinated in right of payment to the Finance Obligations and (ii) of any manner become directly Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary;
(c) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate amount for all such Indebtedness $25,000,000 at any one time outstanding;
(d) Indebtedness outstanding on the Closing Date and listed on Schedule 7.2(d) (or indirectly liable for to the payment of or otherwise incur, contingently or otherwise (collectively, "incur"extent not listed on such Schedule 7.2(d), any Indebtedness (including any Acquired Indebtedness), unless where such Indebtedness is less than $1,000,000) and any Permitted Refinancing thereof;
(e) Guarantee Obligations (i) made in the ordinary course of business by Superholdings, Holdings, the Borrower or any of its Restricted Subsidiaries of obligations of the Borrower or any Subsidiary Guarantor and (ii) by any Non-Guarantor Subsidiary of obligations of any other Non-Guarantor Subsidiary;
(f) the Superholdings Notes and Permitted Refinancing (without regard to clause (f) of the definition thereof) of the Superholdings Notes, so long as the Consolidated Leverage Ratio of Superholdings does not exceed on a Pro Forma Basis (determined as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.1(a) or (b), as applicable) 4.50 to 1.00;
(g) Indebtedness of Excluded Subsidiaries in respect of local lines of credit, letters of credit, bank guarantees, factoring arrangements, sale/leaseback transactions and similar extensions of credit, so long as both before and after the incurrence of such Indebtedness the Borrower shall be in Pro Forma Compliance (determined on a Pro Forma Basis as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.1(a) or (b), as applicable) with the financial covenants set forth in Section 7.1;
(h) Indebtedness of Joint Ventures and Excluded Subsidiaries owing to any Loan Party, provided that the Permitted Non-Guarantor Investment Amount at such time after giving effect thereto does not exceed the Maximum Investment Amount;
(i) Guarantee Obligations by Loan Parties of obligations of Excluded Subsidiaries, provided that the aggregate outstanding Permitted Non-Guarantor Investment Amount at such time after giving effect thereto does not exceed the Maximum Investment Amount and (ii) Guarantee Obligations by Excluded Subsidiaries of obligations of Excluded Subsidiaries;
(j) Indebtedness of the Borrower under Permitted Seller Notes issued as consideration in connection with a Permitted Acquisition;
(k) Indebtedness of the Borrower or any of its Restricted Subsidiaries in respect of workers’ compensation claims, bank guarantees, warehouse receipts or similar facilities, property casualty or liability insurance, take-or-pay obligations in supply arrangements, self-insurance obligations, performance, bid, customs, government, appeal and surety bonds, completion guaranties and other obligations of a similar nature, in each case in the ordinary course of business;
(l) Reserved;
(m) additional Indebtedness of the Borrower or any of its Restricted Subsidiaries not to exceed an aggregate outstanding principal amount of $25,000,000 at any time;
(n) Indebtedness of the Borrower or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn by the Borrower or such Restricted Subsidiary in the ordinary course of business against insufficient funds, so long as such Indebtedness is promptly repaid;
(o) Indebtedness in the form of earn-outs, indemnification, incentive, non-compete, consulting or other similar arrangements and other contingent obligations in respect of acquisitions or Investments permitted by Section 7.8 (both before or after any liability associated therewith becomes fixed);
(p) Indebtedness incurred by the Company Borrower or any Guarantor of its Restricted Subsidiaries arising from agreements providing for indemnification related to sales of goods or constitutes Acquired adjustment of purchase price or similar obligations in any case incurred in connection with the acquisition or Disposition of any business, assets or Subsidiary;
(q) Indebtedness issued in lieu of cash payments of Restricted Payments permitted by Section 7.6; provided that such Indebtedness is subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(r) Indebtedness of the Borrower or any Subsidiary Guarantor as an account party in respect of trade letters of credit issued in the ordinary course of business and Indebtedness in respect of the Specified Letters of Credit;
(s) Indebtedness owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the ordinary course of business;
(t) Indebtedness of any Person that becomes a Restricted Subsidiary andor is merged into the Borrower or a Restricted Subsidiary after the Closing Date as part of an acquisition, merger or consolidation or amalgamation or other Investment not prohibited hereunder (a “New Subsidiary”), which Indebtedness exists at the time of such acquisition, merger or consolidation or amalgamation or other Investment, and any Permitted Refinancing thereof; provided that (A) such Indebtedness exists at the time such Person becomes a Restricted Subsidiary or is merged into the Borrower or a Restricted Subsidiary and is not created in contemplation of or in connection with such Person becoming a Restricted Subsidiary or with such merger (except to the extent such Indebtedness refinanced other Indebtedness to facilitate such Person becoming a Restricted Subsidiary), (B) the aggregate principal amount of Indebtedness permitted by this clause (t) shall not at any one time outstanding exceed $25,000,000 and (C) neither the Borrower nor any Restricted Subsidiary (other than the applicable New Subsidiary) shall provide security therefor;
(u) Permitted Ratio Debt, so long as (i) both before and after giving effect to the issuance or incurrence thereof, no Default or Event of Default shall have occurred and be continuing and (ii) after giving effect to the issuance or incurrence thereof, the Consolidated Leverage Ratio of Superholdings on a Pro Forma Basis (determined as of the last day of the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.1(a) or (b), as applicable) shall not exceed 4.25 to 1.00 and the Consolidated Interest Coverage Ratio of Superholdings on a Pro Forma Basis (determined for the most recently ended Test Period for which financial statements were required to have been delivered pursuant to Section 6.1(a) or (b), as applicable) shall not be less than 2.00 to 1.00;
(v) Indebtedness issued by the Borrower or any Restricted Subsidiary to the officers, directors and employees of Superholdings, Holdings, any Parent Company, the Borrower or any Restricted Subsidiary, in lieu of or combined with cash payments to finance the purchase of Capital Stock of Superholdings, Holdings, any Parent Company or the Borrower, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth belowsuch purchase is permitted by Section 7.6(e);
(w) Indebtedness in respect of overdraft facilities, employee credit card programs, netting services, automatic clearinghouse arrangements and other cash management and similar arrangements in the Restricted Subsidiaries may incur each and all ordinary course of the following (collectively, the "Permitted Indebtedness"):business;
(i) Indebtedness of the Company under Borrower or any of its Restricted Subsidiaries undertaken in connection with cash management and related activities with respect to any Subsidiary or Joint Venture in the Company's Credit Agreement (including any refinancing (as defined below) ordinary course of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, business and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower or any Restricted Subsidiary under to any Inventory Facility;
Joint Venture (iii) Indebtedness regardless of the Company pursuant to the Securities or the Exchange Securities and Indebtedness form of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(ivlegal entity) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into arising in the ordinary course of business in connection with the cash management operations (aincluding in respect of intercompany self-insurance arrangements) pursuant of the Borrower and its Restricted Subsidiaries;
(y) Guarantee Obligations made in the ordinary course of business; provided that such Guarantees are not of Funded Debt;
(i) Indebtedness representing deferred compensation or stock-based compensation to Interest Rate Agreements designed to protect employees of Superholdings, Holdings, the Company Borrower or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business and (ii) Indebtedness consisting of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company Borrower or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and under deferred compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, arrangements incurred in connection with the acquisition or disposition of any business or assets of a Restricted SubsidiaryInvestment permitted hereunder;
(xiaa) loan notes, Indebtedness representing reimbursement obligations associated with the Specified Letters of Credit; and
(bb) all premium (if any), issued to a holder interest (including post-petition interest), fees, expenses, charges, accretion or amortization of original issue discount, accretion of interest paid in kind and additional or contingent interest on obligations described in clauses (a) through (aa) above. For purposes of determining compliance with this Section 7.2, in the event that an item of Indebtedness meets the criteria of more than one of the shares categories of Capital Stock Indebtedness described in clauses (c), (g), (h), (m), (r), (t) or (u) above, the Borrower shall, in its sole discretion, classify and reclassify or later divide, classify or reclassify such item of Sytner Group plc in connection with Indebtedness (or any portion thereof) and may include the tender offer for all amount and type of such Capital Stock;
(xii) Indebtedness in one or more of the Sytner Group plc and any above clauses; provided, that, for the avoidance of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiiidoubt, Indebtedness reclassified under Section 7.2(u) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;must be unsecured.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Company and any of its Restricted Subsidiaries may Incur Indebtedness (aincluding Acquired Indebtedness) if on the U.S. dollar equivalent date of any loan notes referred such Incurrence and after giving pro forma effect thereto (including pro forma application of the proceeds thereof), the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries is greater than 2.00 to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and 1.00.
(b) Section 3.2(a) will not prohibit the Incurrence of the following Indebtedness (collectively, “Permitted Debt”):
(1) Indebtedness Incurred under any Credit Facility (including letters of credit or bankers’ acceptances issued or created under any Credit Facility), and Guarantees in respect of such Indebtedness, up to an aggregate principal amount at the time of Incurrence not exceeding the sum of (i) the greater of (x) $500.0 million and (y) 20.0% of Total Assets at the time of incurrence, plus (ii) an aggregate principal amount of Indebtedness that at the time of Incurrence would not cause, on the date of Incurrence of such Indebtedness and after giving effect thereto, the Consolidated Secured Leverage Ratio to exceed 2.5 to 1.0, plus (iii) in the case of any refinancing, replacement, extension, renewal or restructuring of any Indebtedness permitted under this clause or any portion thereof, the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar fees) Incurred or payable in connection with such refinancing, and any Refinancing Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000respect thereof;
(ii2) Indebtedness of Guarantees by the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding so long as the Incurrence of such Indebtedness or other than obligations is not prohibited by the terms of this Indenture and, in the case of any Guarantee of Subordinated Indebtedness, such Guarantee is subordinated to the Notes to same degree as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofthe Indebtedness so guaranteed;
(ix3) Indebtedness of the Company owing to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided, however, that:
(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (a) the Notes (other than any Additional Notes), including any Guarantee thereof, (b) any Indebtedness (other than Indebtedness Incurred pursuant to clauses (1) and (3) above) outstanding on the Issue Date and any Guarantees thereof and (c) Refinancing Indebtedness (including, with respect to the Notes, and any Guarantee thereof) Incurred in respect of any Indebtedness described in this clause (4) or clause (2) or (5) of this Section 3.2(b) or Incurred pursuant to Section 3.2(a);
(5) Indebtedness of (x) the Company or any Restricted Subsidiary Incurred or issued to finance an acquisition or (y) Persons that are acquired by the Company or any Restricted Subsidiary or merged into, amalgamated or consolidated with the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that after giving effect to such acquisition, merger or consolidation, either:
(a) the Company would be permitted to Incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 3.2(a);
(b) either the Fixed Charge Coverage Ratio of the Company and its Restricted Subsidiaries would not be lower than it was immediately prior to such acquisition, merger, amalgamation or consolidation; or
(c) such Indebtedness constitutes Acquired Indebtedness (other than Indebtedness Incurred in contemplation of the transaction or series of related transactions pursuant to which such Person became a Restricted Subsidiary or was otherwise acquired by the Company or a Restricted Subsidiary); provided that, in the case of this clause (c), the only obligors with respect to such Indebtedness shall be those Persons who were obligors of such Indebtedness prior to such acquisition, merger or consolidation;
(6) Hedging Obligations (excluding Hedging Obligations entered into for speculative purposes);
(7) Indebtedness (i) represented by Capital Capitalized Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property (in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Companycase, without duplications) in an aggregate outstanding principal amount which, taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (ixi) and then outstanding, does not to exceed the greater of (A) $35,000,000 outstanding at any time; provided that the principal amount 50.0 million and (B) 2.0% of any Indebtedness permitted under this clause (ix) did not in each case Total Assets at the time of incurrence exceed Incurrence or (ii) represented by any Mortgage Facility, Sale and Leaseback Transaction or to finance the Fair Market Value, as determined by the Company in good faith, acquisition of the acquired or constructed asset or improvement so financedHaulers;
(x8) Indebtedness in respect of (i) workers’ compensation claims, self-insurance obligations, customer guarantees, performance, indemnity, surety, judgment, appeal, advance payment, customs, value added or other tax or other guarantees or other similar bonds, instruments or obligations arising from agreements and completion guarantees and warranties provided by the Company or a Restricted Subsidiary or relating to provide liabilities, obligations or guarantees Incurred in the ordinary course of business or consistent with past practice, (ii) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or consistent with past practice; provided, however, that such Indebtedness is extinguished within five (5) Business Days of Incurrence, (iii) customer deposits and advance payments received in the ordinary course of business or consistent with past practice from customers for goods or services purchased in the ordinary course of business or consistent with past practice, (iv) letters of credit, bankers’ acceptances, discontinuing or factoring of receivables or payables for credit management purposes, warehouse receipts, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or consistent with past practice, (v) any customary treasury, depositary, cash management, automatic clearinghouse arrangements, overdraft protections, credit or debit card, purchase card, electronic funds transfer, cash pooling or netting or setting off arrangements or similar arrangements in the ordinary course of business or consistent with past practice, and (vi) Settlement Indebtedness;
(9) Indebtedness arising from agreements providing for guarantees, indemnification, customary obligations in respect of earn-outs, deferred purchase price closing adjustments, earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of or Person or any Capital Stock of Sytner Group plc a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that the maximum liability of the Company and its Restricted Subsidiaries in respect of all such Indebtedness in connection with a disposition shall at no time exceed the tender offer for all gross proceeds, including the fair market value of such Capital Stock;
non-cash proceeds (xii) Indebtedness of measured at the Sytner Group plc time received and without giving effect to any of its Subsidiaries subsequent changes in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided value), actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(10) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness incurred pursuant to this clause and then outstanding, will not exceed 20.0% of the Company’s Market Capitalization;
(11) Indebtedness of Non-Guarantors in an aggregate amount not to exceed the greater of (x) $50.0 million and 2.0% of Total Assets at the time of incurrence, and any Refinancing Indebtedness in respect thereof, to the extent such Indebtedness would not be considered Permitted Indebtedness if such Non-Guarantor was a Guarantor;
(12) Indebtedness incurred by the Company or any of its Restricted Subsidiaries to the extent that the net proceeds thereof are promptly deposited with the Trustee to satisfy or discharge the Notes or exercise the Company’s legal defeasance or covenant defeasance, in each case, in accordance with the Indenture;
(13) Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums;
(14) Indebtedness in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause and then outstanding, will not exceed the greater of (x) 500.0 million and (y) 20.0% of Total Assets;
(15) Indebtedness in respect of any Securitization Facility or any Receivables Facility;
(16) any obligation, or guaranty of any obligation, of the Company or any Restricted Subsidiary to reimburse or indemnify a Person extending credit to customers of the Company or a Restricted Subsidiary incurred in the ordinary course of business provided or consistent with past practice for all or any portion of the amounts payable by such customers to the Person extending such credit; and
(17) Indebtedness Incurred under any Floor Plan Facility.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 3.2:
(1) in the event that all or any portion of any item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 3.2(a) and (b), the Company, in its sole discretion, shall classify, and may from time to time reclassify, such item of Indebtedness (or any portion thereof) and only be required to include the amount and type of such Indebtedness in Section 3.2(a) or one of the clauses of Section 3.2(b);
(2) additionally, all or any portion of any item of Indebtedness may later be reclassified as having been Incurred pursuant to any type of Indebtedness described in Section 3.2(a) or (b) so long as such Indebtedness is permitted to be Incurred pursuant to such provision and any related Liens are permitted to be Incurred at the time of reclassification;
(3) in the case of any Refinancing Indebtedness, when measuring the outstanding amount of such Indebtedness, such amount shall not include the aggregate amount of fees, underwriting discounts, accrued and unpaid interest, premiums (including tender premiums) and other costs and expenses (including original issue discount, upfront fees or similar fees) Incurred or payable in connection with such refinancing;
(4) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included;
(5) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to Section 3.2(a) or any clause of Section 3.2(b) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(6) the principal amount of any Disqualified Stock of the Company or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(7) Indebtedness permitted by this Section 3.2 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 3.2 permitting such Indebtedness;
(8) in the event that the obligations Company or a Restricted Subsidiary enters into or increases commitments under such a revolving credit facility, enters into any commitment to Incur or issue Indebtedness, Disqualified Stock or Preferred Stock or commits to Incur any Lien pursuant to clause (31) of the definition of “Permitted Liens,” the incurrence or issuance thereof for all purposes under this Indenture, including without limitation for purposes of calculating the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, or usage of clauses (1) through (17) of Section 3.2(b) (if any) for borrowings and reborrowings thereunder (and including issuance and creation of letters of credit are supported by and bankers’ acceptances thereunder) will, at the Company’s option, either (a) be determined on the date of such revolving credit facility or such entry into or increase in commitments (assuming that the full amount thereof has been borrowed as of such date) or other Indebtedness, Disqualified Stock or Preferred Stock, and, if such Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, test or other provision of this Indenture is satisfied with respect thereto at such time, any borrowing or reborrowing thereunder (and the issuance and creation of letters of credit and bankers’ acceptances thereunder) will be permitted under this Section 3.2 irrespective of the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, or other provision of this Indenture at the time of any borrowing or reborrowing (or issuance or creation of letters of credit or other bankers’ acceptances thereunder) (the committed amount permitted to be borrowed or reborrowed (and the issuance and creation of letters of credit support issued and bankers’ acceptances) on a date pursuant to the operation of this clause (a) shall be the “Reserved Indebtedness Amount” as of such date for purposes of the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or provided under the Credit AgreementConsolidated Total Leverage Ratio, as applicable), or (b) be determined on the date such amount is borrowed pursuant to any such facility or increased commitment, and in each case, the Company may revoke such determination at any time and from time to time;
(9) in the event that the Company or a Restricted Subsidiary (x) incurs Indebtedness to finance an acquisition or (y) assumes Indebtedness of Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture, the date of determination of the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, shall, at the option of the Company, be (a) the date that a definitive agreement for such acquisition is entered into and the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, shall be calculated giving pro forma effect to such acquisition and any actions or transactions related thereto (including acquisitions, Investments, the Incurrence or issuance of Indebtedness, Disqualified Stock or Preferred Stock and the use of proceeds thereof) consistent with the definition of the Fixed Charge Coverage Ratio, the Consolidated Secured Leverage Ratio or the Consolidated Total Leverage Ratio, as applicable, and, for the avoidance of doubt, (A) if any such ratios are exceeded as a result of fluctuations in such ratio (including due to fluctuations in the Consolidated EBITDA of the Company or the target company) at or prior to the consummation of the relevant acquisition, such ratios will not be deemed to hav
Appears in 1 contract
Sources: Indenture (Carvana Co.)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by Company, eircom, eircom Funding and any Note Guarantor may Incur Indebtedness if on the date of such Incurrence and after giving pro forma effect thereto, (x) the Consolidated Leverage Ratio for the Company and its Restricted Subsidiaries is less than 5.00 to 1.00 and (y) in the case only of an Incurrence of Senior Debt, the Consolidated Senior Leverage Ratio for the Company and its Restricted Subsidiaries is less than 3.50 to 1.00.
(b) Section 4.3(a) will not prohibit the Incurrence of the following Indebtedness:
(1) Indebtedness Incurred (a) the U.S. dollar equivalent of pursuant to any loan notes referred Credit Facility (including but not limited to in clause (xi) respect of this Section 1008(b) not collateralized by cash letters of credit or bankers’ acceptances issued or created thereunder), and any Refinancing Indebtedness in excess respect thereof and Guarantees in respect of $40,000,000 and such Indebtedness or (b) by a Receivables Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in connection with, a Financing Disposition, in a maximum aggregate principal amount at any time outstanding not exceeding (A) €1.4 billion plus (B) in the case of any refinancing of any Credit Facility or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(a) Guarantees in respect of Indebtedness incurred permitted to be secured by a Lien pursuant to clause (xii1) of the definition of “Permitted Liens,” (b) Guarantees by the Company or any Note Guarantor of Indebtedness or any other obligation or liability of the Company, any Note Guarantor or eircom Funding (other than any Indebtedness incurred by the Company, any Note Guarantor or eircom Funding, as the case may be, in violation of this Section 1008(b4.3), including, without limitation, any Guarantees of the Senior Notes, (c) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of any Restricted Subsidiary (except, in excess the case of $20,000,000;
Guarantees issued by a Restricted Subsidiary, eircom Funding) that is not a Note Guarantor (iiother than of any Indebtedness incurred by such Restricted Subsidiary in violation of this Section 4.3), (d) without limiting Section 4.6, Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness Note Guarantor arising by reason of any Guarantor pursuant Lien granted by or applicable to a guarantee of the Securities or the Exchange Securities;
(iv) such Person securing Indebtedness of the Company or any Note Guarantor (other than any Indebtedness incurred by the Company or such Note Guarantor, as the case may be, in violation of this Section 4.3(b)), or (e) without limiting Section 4.6, Indebtedness of any Restricted Subsidiary outstanding on the initial Issue Date and that is not otherwise referred a Note Guarantor arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of any Restricted Subsidiary that is not a Note Guarantor or eircom Funding (other than any Indebtedness incurred by such Restricted Subsidiary in violation of this definition of "Permitted Indebtedness"Section 4.3);
(v3) Indebtedness of the Company owing to a Restricted Subsidiary; provided that and held by any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness and held by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that:
(a) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being beneficially held by a Person other than the Company or a Restricted Subsidiary of the Company; and
(b) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Restricted Subsidiary of the Company, shall be deemed, in each case, to constitute an Incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be and provided further that if a Restricted Subsidiary that is not a Note Guarantor owns or holds such Indebtedness and the Company or any Note Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full of all obligations with respect to the Senior Notes;
(4) Indebtedness represented by: (a) the Senior Notes (other than any Additional Notes) and any exchange notes issued in exchange for any Senior Notes; (b) Note Guarantees; (c) the Senior Subordinated Notes issued on the Issue Date and any exchange notes issued in exchange therefor; (d) the Senior Subordinated Notes Valentia Guarantee and the Senior Subordinated Notes eircom Guarantee; (e) any Indebtedness (other than the Indebtedness described in Section 4.3(b)(1) and (3)) outstanding on the Issue Date; (f) any Refinancing Indebtedness Incurred in respect of any Indebtedness described in this Section 4.3(b)(4) or Section 4.3(b)(5) or Incurred pursuant to Section 4.3(a); and (g) any Management Advances;
(5) Indebtedness of a Restricted Subsidiary Incurred and outstanding on the date on which such Restricted Subsidiary was acquired by the Company (other than Indebtedness Incurred (a) to provide all or any portion of the funds utilized to consummate the transaction or series of related transactions pursuant to which a Restricted Subsidiary became a Restricted Subsidiary or was otherwise acquired by the Company or (b) otherwise in connection with such acquisition); provided, however, that at the time such Restricted Subsidiary is acquired by the Company, (x) the Company would have been able to Incur €1.00 of additional Indebtedness (and if the Indebtedness Incurred pursuant to this clause (5) includes Senior Debt, €1.00 of additional Senior Debt) pursuant to Section 4.3(a) after giving effect to the Incurrence of such Indebtedness pursuant to this Section 4.3(b)(5) or (y) neither the Consolidated Leverage Ratio nor the Consolidated Senior Leverage Ratio would be greater than it was immediately prior to giving effect to such acquisition;
(6) Indebtedness under Currency Agreements, Interest Rate Agreements and Commodity Hedging Agreements do not increase the Indebtedness or other obligations entered into for bona fide hedging purposes of the Company or any its Restricted Subsidiary outstanding other than Subsidiaries and not for speculative purposes (as a result determined in good faith by the Board of fluctuations in foreign currency exchange rates Directors or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations senior management of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofCompany);
(ix7) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Capitalized Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personalObligations, movable or immovable, property and in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used Refinancing Indebtedness in the business of the Companyrespect thereof, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount greater of any Indebtedness permitted under this clause (ix) did not in each case at the time €150 million and 3.75% of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedTotal Assets;
(x8) Indebtedness Incurred in respect of (a) workers’ compensation claims, self-insurance obligations, performance, surety, judgment, appeal or other similar bonds, instruments or obligations arising from agreements and completion guarantees provided by the Company or a Restricted Subsidiary, or relating to liabilities or obligations incurred, in the ordinary course of business, (b) letters of credit, bankers’ acceptances or other similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business and (c) the financing of insurance premiums in the ordinary course of business;
(9) Indebtedness arising from agreements of the Company or a Restricted Subsidiary to provide providing for guarantees, indemnification, customary obligations in respect of earnouts or other adjustments of purchase price closing adjustmentsor, earn-outs or other in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets or Person or any Capital Stock of a Restricted SubsidiarySubsidiary (other than guarantees of Indebtedness incurred by any Person acquiring or disposing of such business or assets or such Subsidiary for the purpose of financing such acquisition or disposition);
(xi10) loan notesIndebtedness arising from the honoring by a bank or other financial institution of a check, if anydraft or similar instrument drawn against insufficient funds in the ordinary course of business, issued to a holder provided, however, that such Indebtedness is extinguished within five business days of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;Incurrence; and
(xii11) in addition to the items referred to in Sections 4.3(b)(1) through (10) above, Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in an aggregate outstanding principal amount which, when taken together with the ordinary course principal amount of business all other Indebtedness Incurred pursuant to this Section 4.3(b)(11) and then outstanding, will not exceed the greater of €100 million and 2.5% of Total Assets at any time outstanding.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to and in compliance with, this Section 4.3:
(1) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Sections 4.3(a) and (b), the Company, in its sole discretion, will classify, and may from time to time reclassify, such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of such clauses;
(2) all Indebtedness outstanding on the date of this Indenture under the Senior Secured Credit Agreement shall be deemed initially Incurred on the Issue Date under Section 4.3(b)(1) and not Sections 4.3(a) or (b)(3), and may not be reclassified pursuant to Section 4.3(c)(1);
(3) Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or other similar instruments relating to, or Liens securing, Indebtedness which is otherwise included in the determination of a particular amount of Indebtedness shall not be included;
(4) if obligations in respect of letters of credit, bankers’ acceptances or other similar instruments are Incurred pursuant to any Credit Facility and are being treated as Incurred pursuant to Sections 4.3(b)(1) or (11) and the letters of credit, bankers’ acceptances or other similar instruments relate to other Indebtedness, then such other Indebtedness shall not be included;
(5) the principal amount of any Disqualified Stock of the Company or a Restricted Subsidiary, or Preferred Stock of a Restricted Subsidiary that is not a Note Guarantor, will be equal to the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof;
(6) Indebtedness permitted by this Section 4.3 need not be permitted solely by reference to one provision permitting such Indebtedness but may be permitted in part by one such provision and in part by one or more other provisions of this Section 4.3 permitting such Indebtedness; and
(7) the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP.
(d) Accrual of interest, accrual of dividends, the accretion of accreted value, the accretion or amortization of original issue discount, the payment of interest in the form of additional Indebtedness and the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 4.3. The amount of any Indebtedness outstanding as of any date shall be (i) the accreted value thereof in the case of any Indebtedness issued with original issue discount and (ii) the principal amount or liquidation preference thereof, in the case of any other Indebtedness.
(e) If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted Subsidiary of the Company as of such date (and, if such Indebtedness is not permitted to be Incurred as of such date under this Section 4.3, the Company shall be in Default of this Section 4.3).
(f) For purposes of determining compliance with any euro-denominated restriction on the Incurrence of Indebtedness, the euro-equivalent principal amount of Indebtedness denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that (x) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a currency other than euros, and such refinancing would cause the obligations under applicable euro-dominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such letters refinancing, such euro-dominated restriction shall be deemed not to have been exceeded so long as the principal amount of credit are supported by letters such refinancing Indebtedness does not exceed the principal amount of credit or such Indebtedness being refinanced, (y) the euro-equivalent principal amount of any such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date and (z) the euro equivalent principal amount of Indebtedness denominated in a currency other credit support issued or provided than euros and incurred pursuant to the Senior Secured Credit Agreement shall be calculated based on the relevant currency exchange rate in effect on, at the Company’s option, (i) the Issue Date, (ii) the date on which any of the respective commitments under the Senior Secured Credit Agreement;Agreement shall be reallocated among facilities or subfacilities thereunder, or on which such rate is otherwise calculated for any purpose thereunder, or (iii) the date of Incurrence. Notwithstanding any other provision of this Section 4.3, the maximum amount of Indebtedness that the Company may Incur pursuant to this Section 4.3 shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred 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 Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issueCreate, incur, assume, guarantee assume or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), suffer to exist any Indebtedness (including any Acquired IndebtednessIndebtedness of any of its Subsidiaries), unless except:
(a) Indebtedness of the Parent Borrower and its Subsidiaries incurred pursuant to this Agreement and the other Loan Documents;
(b) Indebtedness evidenced by the Senior Notes; provided that the aggregate principal amount of Indebtedness evidenced by Senior Notes at any time outstanding pursuant to this clause (b) shall not exceed $620,000,000 less any repayments of principal of Indebtedness theretofore outstanding pursuant to this clause (b);
(c) Assumed Indebtedness;
(d) Indebtedness incurred pursuant to the Second-Lien Term Loans Documents; provided that the aggregate principal amount of Indebtedness at any time outstanding pursuant to this clause (d) shall not exceed $1,430,000,000, provided that such Indebtedness shall not be extended, renewed, replaced, refinanced or otherwise amended, except as permitted by subsection 8.13;
(e) Indebtedness of (i) any Borrower (other than Canadian F▇▇▇▇) owing to any other Borrower or Holdings, (ii) any Borrower (other than Canadian F▇▇▇▇) owing to any Subsidiary, (iii) any Qualified Subsidiary Guarantor owing to Holdings or any Borrower (other than Canadian F▇▇▇▇) or any other Qualified Subsidiary Guarantor, (iv) any Non-Guarantor Subsidiary owing to any Borrower (other than Canadian F▇▇▇▇) or any Subsidiary Guarantor if permitted pursuant to subsection 8.8 and (v) any Non-Guarantor Subsidiary owing to any other Non-Guarantor Subsidiary, so long as any such Indebtedness of any Loan Party owing to any Subsidiary that is not a Loan Party shall be subject to subordination provisions substantially in the form of Exhibit L;
(f) Indebtedness of the Parent Borrower and any of its Subsidiaries incurred to finance or refinance the acquisition, leasing, construction or improvement of fixed or capital assets (whether pursuant to a loan, a Financing Lease or otherwise) otherwise permitted pursuant to this Agreement, and any other Financing Leases, in an aggregate principal amount not, when added to the aggregate principal amount of outstanding Assumed Indebtedness of the type described in this paragraph (f), exceeding $175,000,000 at any one time outstanding, provided that such amount shall be increased by an amount equal to $25,000,000 on (x) each anniversary of the Closing Date, so long as no Default or Event of Default shall have occurred and be continuing on any date on which such amount is to be increased or (y) such later date on which such Default or Event of Default shall have been cured;
(g) (x) unsecured Indebtedness of the Parent Borrower and any of its Subsidiaries incurred to finance or refinance the purchase price of, or (y) Indebtedness of the Parent Borrower and any of its Subsidiaries assumed in connection with, any acquisition permitted by subsection 8.9; provided that (i) in the case of clause (x), such Indebtedness is incurred by prior to, substantially simultaneously with or within six months after such acquisition or in connection with a refinancing thereof, (ii) if such Indebtedness is owed to a Person other than the Company Person from whom such acquisition is made or any Guarantor or constitutes Acquired Affiliate thereof, such Indebtedness shall have terms and conditions reasonably satisfactory to the U.S. Administrative Agent and shall not exceed 70% of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence purchase price of such acquisition (including any Indebtedness taken assumed in connection with such acquisition) (or such greater percentage as one period is at least equal shall be reasonably satisfactory to or the U.S. Administrative Agent or, if any such purchase price shall be greater than 2.00:1.$75,000,000, such greater percentage as shall be reasonably satisfactory to the Required Lenders), (iii) if such Indebtedness is being assumed under this paragraph (g), such Indebtedness shall not have been incurred by any party in contemplation of the acquisition permitted by subsection 8.9 and (iv) immediately after giving effect to such acquisition no Default or Event of Default shall have occurred and be continuing;
(bh) Notwithstanding the foregoing, the Company and, to the extent specifically set forth belowthat any Indebtedness may be incurred or arise thereunder, the Restricted Subsidiaries may incur each and all Indebtedness of the following Parent Borrower and its Subsidiaries under Interest Rate Protection Agreements (collectively, the "other than those entered into for speculative purposes) and under Permitted Indebtedness"):Hedging Arrangements;
(i) to the extent that any Guarantee Obligation or other obligation permitted under subsection 8.4 constitutes Indebtedness, such Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations and trade-related letters of credit, in each case provided in the ordinary course of business;
(k) Indebtedness of the Company Parent Borrower or any of its Subsidiaries in respect of Sale and Leaseback Transactions permitted under subsection 8.11;
(l) Indebtedness of the Parent Borrower or any of its Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(m) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds; provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(n) Indebtedness in respect of Financing Leases which have been funded solely by Investments of the Parent Borrower and its Subsidiaries permitted by subsection 8.8(l);
(o) Indebtedness which represents an extension, refinancing, refunding, replacement or renewal of any of the Indebtedness described in paragraphs (b), (c), (d) and (g) of this subsection 8.2 hereof; provided that (i) the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so extended, refinanced, refunded, replaced or renewed, except by an amount equal to unpaid accrued interest and premium (including applicable prepayment penalties) thereon plus fees and expenses reasonably incurred in connection therewith, (ii) any Liens securing such Indebtedness are limited to all or part of the same property (including, if required by the documentation evidencing such Indebtedness being extended, refinanced, refunded, replaced or renewed, after-acquired property of the same type) that secured the Indebtedness being refinanced; provided that the total value of the collateral securing such Indebtedness incurred under this subsection 8.2(o) immediately following such incurrence shall not be materially greater than the value of the collateral securing the Indebtedness being extended, refinanced, refunded, replaced or renewed immediately prior to such extension, refinancing, refunding, replacement or renewal, (iii) no Loan Party that is not originally obligated with respect to repayment of such Indebtedness is required to become obligated with respect thereto, (iv) such extension, refinancing, refunding, replacement or renewal does not result in a shortening of the Weighted Average Life to Maturity of the Indebtedness so extended, refinanced, refunded, replaced or renewed and (v) if the Indebtedness that is extended, refinanced, refunded, replaced or renewed was subordinated in right of payment to the obligations of any Loan Party hereunder and under the Company's Credit Agreement other Loan Documents, then the terms and conditions of the extension, refinancing, refunding, replacement or renewal Indebtedness must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the extended, refinanced, refunded, replaced or renewed Indebtedness;
(including p) cash management obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case arising under standard business terms of any refinancing bank at which the Parent Borrower or Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement;
(as defined belowq) Indebtedness of such IndebtednessForeign Subsidiaries of the Parent Borrower not exceeding in aggregate principal amount at any time outstanding an amount equal to $50,000,000; and
(r) Indebtedness not otherwise permitted by the preceding paragraphs of this subsection 8.2 not exceeding $250,000,000 in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 outstanding. For purposes of determining compliance with this subsection 8.2, 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 under the Credit Agreement or of such Indebtedness incurred (in respect of letters term Indebtedness) or committed (in respect of credit under revolving Indebtedness) on or prior to the Credit AgreementClosing 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 guarantees by Guarantors such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in respect thereof; providedeffect on the date of such refinancing, however, that the foregoing amount such Dollar-denominated restriction shall be reduced by deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (ai) the U.S. dollar equivalent outstanding or committed principal amount, as applicable, of any loan notes referred to in clause such Indebtedness being refinanced plus (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (bii) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities underwriting discounts, premiums and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities costs and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, expenses incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;refinancing.
Appears in 1 contract
Sources: Credit Agreement (RSC Holdings Inc.)
Limitation on Indebtedness. (a) The Company Borrower will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for that the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company Borrower or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof (or, at the Company's Consolidated Fixed Charge Coverage Ratio for Borrower’s option, on the most recent four full fiscal quarters for which financial statements are available immediately preceding date of the incurrence initial borrowing of such Indebtedness taken as one period is at least or entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount thereof, in which case such committed amount may thereafter be borrowed and reborrowed in whole or in part, from time to time, without further compliance with this proviso), the Consolidated Coverage Ratio would be equal to or greater than 2.00:12.00:1.00; provided, further, that the aggregate principal amount of Indebtedness that may be Incurred pursuant to this Subsection 8.1(a), by Restricted Subsidiaries that are not Subsidiary Guarantors or Escrow Subsidiaries, together with the aggregate outstanding principal amount of Indebtedness Incurred by Restricted Subsidiaries that are not Subsidiary Guarantors or Escrow Subsidiaries pursuant to Subsection 8.1(b)(xvii), shall not exceed the greater of $437,500,000 and 26.50% of Consolidated Tangible Assets at any time outstanding.
(b) Notwithstanding the foregoingforegoing Subsection 8.1(a), the Company and, to the extent specifically set forth below, the Borrower and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) (I) Indebtedness Incurred by the Borrower, a Guarantor or an Escrow Subsidiary (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations (and Refinancing Indebtedness in respect thereof), (d) constituting Rollover Indebtedness (and Refinancing Indebtedness in respect thereof), (e) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 (and any Refinancing Indebtedness in respect thereof) and (f) pursuant to any Letter of Credit Facility (and any Refinancing Indebtedness in respect thereof), in a maximum principal amount for all such Indebtedness at any time outstanding not exceeding in the Company under aggregate an amount equal to the Company's Credit Agreement sum of (A) $1,500,000,000, plus (B) the greater of (x) $1,350,000,000 and (y) an amount equal to (but not less than zero) (1) the Borrowing Base, less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(ix), less (3) the aggregate principal amount of Indebtedness Incurred by any Foreign Subsidiaries and then outstanding pursuant to Subsection 8.1(b)(xv)(ii), plus (C) without duplication of incremental amounts included in the definition of “Refinancing Indebtedness”, in the event of any refinancing of any such Indebtedness (including with Specified Refinancing Indebtedness), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing, and (II) Indebtedness Incurred by the Borrower, a Guarantor or an Escrow Subsidiary (a) pursuant to this Agreement and the other Loan Documents, (b) pursuant to the Senior ABL Facility, (c) constituting Additional Obligations, (d) constituting Rollover Indebtedness, (e) in respect of Permitted Debt Exchange Notes Incurred pursuant to a Permitted Debt Exchange in accordance with Subsection 2.9 and (f) pursuant to any refinancing (as defined below) Letter of such Indebtedness) Credit Facility, in an aggregate principal amount at for all such Indebtedness outstanding after giving effect to such Incurrence not in excess of the Maximum Incremental Facilities Amount (for purposes of determining the amount outstanding pursuant to clause (i) of the definition of “Maximum Incremental Facilities Amount”, treating (x) any one time then unused portion of Incremental Revolving Commitments made available in reliance on such clause as outstanding not Indebtedness and (y) Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to exceed $920,000,000 in any case under the Credit Agreement or this Subsection 8.1(b)(i)(II) in respect of letters Indebtedness Incurred in reliance on clause (i) of credit under the Credit Agreement, definition of “Maximum Incremental Facilities Amount” (and guarantees by Guarantors Refinancing Indebtedness and Permitted Debt Exchange Notes Incurred pursuant to this Subsection 8.1(b)(i)(II) in respect thereof; providedof such Refinancing Indebtedness and/or Permitted Debt Exchange Notes) as outstanding pursuant to such clause), however, that together with Refinancing Indebtedness in respect of the foregoing amount shall be reduced by Indebtedness described in subclauses (a), (b), (c), (d), (e) the U.S. dollar equivalent of any loan notes referred to in clause and (xif) of this Section 1008(b) not collateralized by cash clause (II), plus, without duplication of incremental amounts included in excess the definition of $40,000,000 and “Refinancing Indebtedness”, in the event of any refinancing of such Indebtedness (b) including with Specified Refinancing Indebtedness), the aggregate amount of Indebtedness incurred pursuant to clause all fees, underwriting discounts, premiums and other costs and expenses (xiiincluding accrued and unpaid interest) of this Section 1008(b) Incurred or payable in excess of $20,000,000connection with such refinancing;
(ii) Indebtedness (A) of any Restricted Subsidiary to the Borrower, or (B) of the Company Borrower or any Restricted Subsidiary under to any Inventory FacilityRestricted Subsidiary; provided that in the case of this Subsection 8.1(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Borrower or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Subsection 8.1(b)(ii);
(iii) Indebtedness of represented by (A) [reserved], (B) any Indebtedness (other than the Company Indebtedness pursuant to this Agreement and the Securities other Loan Documents described in Subsection 8.1(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Exchange Securities Closing Date and set forth on Schedule 8.1 and (C) any Refinancing Indebtedness Incurred in respect of any Guarantor pursuant to a guarantee of the Securities Indebtedness (or the Exchange Securitiesunutilized commitments) described in this Subsection 8.1(b)(iii), Subsection 8.1(a) or Subsection 8.1(b)(xvii);
(iv) Purchase Money Obligations, Financing Lease Obligations, and in each case any Refinancing Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness"respect thereof;
(v) Indebtedness (A) supported by a letter of credit issued in compliance with this Subsection 8.1 in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company owing to a Borrower or any of its Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v)Subsidiaries;
(vi) Indebtedness of a (A) Guarantees by the Borrower or any Restricted Subsidiary owing to of Indebtedness or any other obligation or liability of the Company Borrower or another any Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person Subsidiary (other than a disposition, pledge any Indebtedness Incurred by the Borrower or transfer to the Company or a such Restricted Subsidiary, as the case may be, in violation of this Subsection 8.1), or (B) shall be deemed without limiting Subsection 8.6, Indebtedness of the Borrower or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to be an incurrence such Person securing Indebtedness of such the Borrower or any Restricted Subsidiary (other than any Indebtedness Incurred by the obligor not permitted by Borrower or such Restricted Subsidiary, as the case may be, in violation of this clause (viSubsection 8.1);
(vii) guarantees Indebtedness of the Borrower or any Restricted Subsidiary made in accordance with (A) arising from the provisions honoring of Section 1013;
(viii) obligations a check, draft or similar instrument of the Company or any Guarantor entered into such Person drawn against insufficient funds in the ordinary course of business business, or (aB) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates consisting of guarantees, indemnities, obligations in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other purchase price adjustments, or similar obligations, in each case, incurred Incurred in connection with the acquisition or disposition of any business business, assets or assets of a Restricted SubsidiaryPerson;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiiviii) Indebtedness of the Sytner Group plc and Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations Restricted Subsidiary in respect of (A) letters of credit credit, bankers’ acceptances or other credit support provided by the Company and its Restricted Subsidiaries similar instruments or obligations issued, or relating to liabilities or obligations incurred, in the ordinary course of business provided that (including those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, entered into for bona fide hedging purposes, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under such letters supply arrangements incurred in the ordinary course of credit are supported by letters business, (G) netting, overdraft protection and other arrangements arising under standard business terms of credit any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other credit support issued similar facility or provided under arrangement, (H) Junior Capital in an aggregate principal amount at any time outstanding not to exceed the Credit Agreementgreater of $223,000,000 and 13.50% of Consolidated Tangible Assets or (I) Bank Products Obligations;
Appears in 1 contract
Sources: Credit Agreement (Core & Main, Inc.)
Limitation on Indebtedness. (a) The Company will Without the consent of the Holders of not less than 66 2/3% of the aggregate principal amount of the Debentures then Outstanding, the Issuer shall not, and will shall not cause or permit any of its Restricted Subsidiaries to, create, issuedirectly or indirectly, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incurliable, contingently or otherwise otherwise, with respect to (collectively, "“incur"), ”) any Indebtedness or permit any Indebtedness to be outstanding, other than:
(including any Acquired Indebtedness), unless such Indebtedness is incurred by a) the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, Debentures and the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.Guarantees;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all of the following (collectively, the "Permitted Indebtedness"):
(i) Specified Senior Indebtedness of the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 550,000,000;
(c) Indebtedness in an aggregate principal amount at any case under the Credit Agreement or in respect of letters of credit under the Credit Agreementone time outstanding not to exceed $450,000,000, and guarantees comprised of:
(i) Indebtedness secured by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000a Purchase Money Security Interest including Capital Leases;
(ii) Indebtedness incurred in connection with a sale and leaseback of the Company or any Restricted Subsidiary under any Inventory Facilityreal property;
(iii) Indebtedness incurred under a securitization or factoring of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securitiesreceivables;
(iv) Indebtedness of any Subsidiary acquired by the Company Borrower or any Restricted Subsidiary outstanding on the initial Issue Date its Subsidiaries that existed prior to such acquisition and not otherwise referred to incurred in this definition contemplation of "Permitted Indebtedness"such acquisition;
(v) Indebtedness incurred to finance insurance premiums;
(vi) other Indebtedness (other than Specified Senior Indebtedness) provided that such Indebtedness shall be unsecured; or
(vii) Indebtedness incurred to refinance any Indebtedness referred to in clauses (i) through (iv) above.
(d) Indebtedness that by its terms is subordinated to the Debentures or to the applicable Guarantee, as the case may be, on terms substantially similar, mutatis mutandis, to the provisions of Article 4 herein and has a maturity at least six months after the Maturity Date; and
(e) Indebtedness owing by the Issuer to any of its Subsidiaries and Indebtedness owing by a Subsidiary of the Company owing Issuer to a Restricted Subsidiarythe Issuer or any of its Subsidiaries; provided that if any such Indebtedness of (i) is owed by the Company owing Issuer or a Guarantor to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations together with all other Indebtedness owed by the Issuer and the Guarantors to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted non-Guarantor Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, is in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any timeone time in excess of $10,000,000, then such Indebtedness shall at such time be subordinated to the Debentures or to the applicable Guarantee, as the case may be, on terms substantially similar, mutatis mutandis, to the provisions of Article 4 herein; provided further that with respect any such Indebtedness outstanding as of the date of this Indenture, the Issuer shall not be required to effect such subordination with respect thereto until the date that is 30 days after the date of this Indenture. For purposes of determining compliance with this section 8.1, and the outstanding principal amount of any particular Indebtedness shall be counted only once, and any obligations arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall not be double counted; and in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (b) through (d) above (or any subclause thereof), the Issuer will be permitted under to classify such item of Indebtedness in whole or in part in any manner that complies with this covenant, including by allocation to more than one other type of Indebtedness. In addition, any Indebtedness originally classified as having been incurred pursuant to clauses (b) through (d) above (or any subclause thereof) may later be reclassified by the Issuer such that it will be deemed as having been incurred pursuant to another of such clauses or subclauses to the extent that such reclassified Indebtedness could be incurred pursuant to such new clause (ix) did not in each case or subclause at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;reclassification.
Appears in 1 contract
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, and will not cause or permit Indebtedness pursuant to any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.Loan Document;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Indebtedness of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of Parent to the Company under the Company's Credit Agreement (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit AgreementBorrower, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company Borrower to Parent, (iii) Parent or the Borrower to any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of any Subsidiary Guarantor to Parent, the Company Borrower or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness for borrowed money that is made pursuant owed by any Loan Party to an intercompany note in any Excluded Subsidiary of the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer Borrower shall be evidenced by the Subordinated Intercompany Note and subordinated to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by Obligations on the obligor not permitted by this clause (vi)terms set forth therein;
(viic) guarantees of Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 6.3(g) in an aggregate principal amount not to exceed $25,000,000 at any Restricted Subsidiary made in accordance with the provisions of Section 1013one time outstanding;
(viiid) obligations of Indebtedness outstanding on the Company or any Guarantor entered into date hereof and listed on Schedule 6.2(d) and intercompany Indebtedness outstanding on the Closing Date;
(e) Guarantee Obligations (i) made in the ordinary course of business by the Borrower or any of its Restricted Subsidiaries of obligations of the Borrower or any Wholly Owned Subsidiary Guarantor and (aii) pursuant to Interest Rate Agreements designed to protect of Parent, the Company Borrower or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness otherwise permitted to be incurred by Parent, the Borrower or such Restricted Subsidiary, as the case may be, under this Section 6.2; provided that if the Indebtedness being guaranteed is subordinated to the Obligations such guarantee shall be subordinated to the guarantee of the Company Obligations on terms at least as favorable to the Lenders as those contained in the subordination provisions of such Indebtedness;
(f) [Reserved];
(g) Indebtedness of the Borrower or any Restricted Subsidiary as long as that is incurred or assumed in connection with any acquisition of property, or of any Person that becomes a Restricted Subsidiary acquired pursuant to any Permitted Acquisition or other Investment permitted under Section 6.8; provided that such obligations do Indebtedness was not exceed incurred (x) to provide all or a portion of the funds utilized to consummate the transaction or series of related transactions constituting such acquisition or property or Permitted Acquisition or Investment or (y) otherwise in connection with, or in contemplation of, such acquisition or property or Permitted Acquisition or Investment;
(h) Indebtedness of Excluded Subsidiaries; provided that the aggregate principal amount of such Indebtedness then shall not exceed $20,000,000 at any time outstanding, (b) under any Currency Hedging Agreements, relating to ;
(i) unsecured Indebtedness of Parent, the Company Borrower and the Restricted Subsidiaries; provided that:
(i) at the time of the incurrence of such Indebtedness and immediately after giving effect thereto, no Default or any Restricted Subsidiary and/or Event of Default shall exist or be continuing;
(ii) obligations the documentation governing such Indebtedness contains customary market terms for the type of Indebtedness then being issued pursuant to purchase Rule 144A transactions as long as such terms (other than (x) interest rate, fees, funding discounts, liquidation preferences, premiums, no call periods, subordination terms and optional prepayment or sell assets or propertiesredemption provisions, and (y) terms applicable only after the then Latest Maturity Date (as determined on the date of incurrence of such Indebtedness)) in the aggregate are not more restrictive than those set forth in the Loan Documents;
(iii) immediately after giving effect to the incurrence of such Indebtedness, (x) the Consolidated Total Leverage Ratio, determined on a Pro Forma Basis as of the last day of the Relevant Reference Period, shall not exceed 5.00 to 1.00 and (y) the Borrower shall be in Pro Forma Compliance with the Financial Covenant (if the Financial Covenant is in effect on the date such Indebtedness is incurred), in each casecase as if such Indebtedness had been outstanding on the last day of such Relevant Reference Period;
(iv) the Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Borrower demonstrating such covenant compliance in reasonable detail;
(v) no more than $10,000,000 in principal amount of Indebtedness of Restricted Subsidiaries which are not Loan Parties incurred pursuant to this Section 6.2(i) may be outstanding at any time; and
(vi) such Indebtedness does not have any scheduled payment of principal (including pursuant to a sinking fund obligation) or mandatory redemption or redemption at the option of the holders thereof or similar prepayment (other than, incurred (x) upon the occurrence of an asset sale or other Disposition or casualty event (subject to reinvestment rights that are in the aggregate no less favorable to the Borrower than those under this Agreement and to rights in respect of the application of the Net Cash Proceeds thereof to the prior repayment of, or offer to repay, the Term Loans), (y) upon the occurrence of a change of control event and (z) customary acceleration rights following an event of default) prior to the date that is 180 days after the then Latest Maturity Date and the Weighted Average Life to Maturity of such Indebtedness is not less than 180 days longer than the Weighted Average Life to Maturity of the then outstanding Term Loans (as determined on the date of incurrence of such Indebtedness);
(j) to the extent constituting Indebtedness, Cash Management Obligations and other Indebtedness in respect of Cash Management Services in the ordinary course of business and Indebtedness arising from the endorsement of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness instruments or other obligations of payment items for deposit and the Company or any Restricted Subsidiary outstanding other than as honoring by a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness bank or other obligations financial institution of the Company instruments or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofpayments items drawn against insufficient funds;
(ixk) Indebtedness of to the Company extent constituting Indebtedness, indemnification, deferred purchase price adjustments, earn-outs or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness similar obligations, in each case, incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ix) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, as determined by the Company in good faith, of the acquired or constructed asset or improvement so financed;
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiaryor any Investment permitted to be acquired or made hereunder or any Disposition permitted hereunder;
(xil) loan notesIndebtedness of a Foreign Subsidiary which would be permitted as an Investment pursuant to Sections 6.8(l), if any6.8(m), issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock6.8(n) and 6.8(z);
(xiim) Indebtedness of the Sytner Group plc and any of its Foreign Subsidiaries in an aggregate principal amount not to exceed $90,000,000 75,000,000 at any time outstanding;
(n) 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;
(o) Indebtedness in respect of Hedge Agreements entered into in the ordinary course of business, and not for speculative purposes, to protect against exposure to interest rates, commodity prices or foreign exchange rates;
(p) Indebtedness of Parent pursuant to the Subordinated Intercompany Note, the proceeds of which are used in lieu of making Restricted Payments in cash to Parent otherwise permitted by Section 6.6;
(q) additional Indebtedness of the Borrower or any of its Restricted Subsidiaries in an aggregate principal amount (for the Borrower and all Restricted Subsidiaries) not to exceed $75,000,000 at any one timetime outstanding; and
(xiiir) Permitted Term Loan Refinancing Indebtedness and Guarantee Obligations by the Guarantors in respect thereof;
(s) Indebtedness representing deferred compensation or similar obligations to employees of the Borrower and its Subsidiaries incurred in the ordinary course of business;
(t) Indebtedness consisting of obligations of the Borrower and the Restricted Subsidiaries under deferred compensation or other similar arrangements with employees incurred by such Person in connection with Permitted Acquisitions or any other Investments permitted hereunder constituting acquisitions of Persons or businesses or divisions;
(u) Indebtedness incurred by the Borrower or any of the Restricted Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; provided that upon the drawing of such letter of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 90 days (or such longer period as may be agreed upon by the Administrative Agent) unless the amount or validity of such obligations are being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the Borrower or its Restricted Subsidiaries, as the case may be;
(v) Indebtedness in respect of performance, bid, release, appeal and surety bonds and performance and completion guarantees and similar obligations provided by the Borrower or any of the Restricted Subsidiaries, in each case in the ordinary course of business;
(w) Indebtedness in respect of letters of credit or other credit support provided by issued for the Company and its account of any of the Restricted Subsidiaries to finance the purchase of inventory so long as (x) such Indebtedness is unsecured and (y) the aggregate principal amount of such Indebtedness does not exceed $5,000,000 at any one time outstanding;
(x) Indebtedness incurred in the ordinary course of business with respect to customer deposits and other unsecured current liabilities not the result of borrowing and not evidenced by any note or other evidence of Indebtedness;
(y) Refinancing Indebtedness in respect of Indebtedness permitted by Section 6.2 (c), (d), (g) and (i) above; and
(z) to the extent constituting Indebtedness, all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in Section 6.2 (a) through (y) above. For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, the Dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be 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 extend, replace, refund, refinance, renew or defease other Indebtedness denominated in a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the obligations under applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such letters extension, replacement, refunding, refinancing, renewal or defeasance, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of credit are supported by letters such refinancing Indebtedness does not exceed the principal amount of credit such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing. To the extent otherwise constituting Indebtedness, the accrual of interest, the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall be deemed not to be Indebtedness for purposes of this Section 6.2. The principal amount of any non-interest bearing Indebtedness or other credit support issued or provided under discount security constituting Indebtedness at any date shall be the Credit Agreement;principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
Appears in 1 contract
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), Incur any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.
(b) Notwithstanding Section 4.06(a) will not prohibit the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Incurrence of the following (collectively, the "Permitted Indebtedness")::
(i1) Indebtedness of the Company under the Company's Issuer or any Guarantor pursuant to any Credit Agreement Facility (including letters of credit or bankers’ acceptances issued or created under any refinancing (as defined below) Credit Facility), and any Refinancing Indebtedness in respect thereof and Guarantees in respect of such Indebtedness) Indebtedness in an a maximum aggregate principal amount at any one time outstanding not exceeding €1,100 million; provided that any such Credit Facility shall only be in the form of a revolving facility and any Refinancing Indebtedness in respect thereof shall only be Incurred pursuant to a revolving facility, except that up to an aggregate principal amount not to exceed $920,000,000 in any case under the Credit Agreement or €50 million may be Incurred in respect of letters of credit Indebtedness under short-term commercial paper with a maturity not to exceed six months; and provided, further, that any Indebtedness Incurred in reliance on this Section 4.06(b)(1) that refinances Indebtedness under the Revolving Credit Agreement, and guarantees by Guarantors Facility (other than any Indebtedness under short-term commercial paper as set forth in respect thereof; provided, however, that the foregoing amount proviso) shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred Incurred under a Credit Facility pursuant to in clause (xi) of this Section 1008(b4.06(b)(1) and shall not collateralized by cash have an All-In Yield in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,0009.0%;
(iiA) Indebtedness of Guarantees by the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as so long as such obligations do not exceed (i) the aggregate principal amount Incurrence of such Indebtedness then outstandingbeing Guaranteed is permitted under the terms of this Indenture, (bii) under if the Indebtedness being Guaranteed is subordinated in right of payment to the Notes or to a Note Guarantee then such Guarantee must be subordinated to the same extent as the Indebtedness being Guaranteed and (iii) if the Indebtedness is Guaranteed by a Restricted Subsidiary that is not a Guarantor, such Restricted Subsidiary complies with Section 4.12; or
(B) without limiting the provisions of Section 4.09, Indebtedness arising by reason of any Currency Hedging Agreements, relating Lien granted by or applicable to (i) such Person securing Indebtedness of the Company or any Restricted Subsidiary and/or so long as the Incurrence of such Indebtedness is permitted under the terms of this Indenture;
(ii3) obligations Indebtedness of the Issuer owing to purchase and held by any Restricted Subsidiary or sell assets or properties, in each case, incurred in the ordinary course Indebtedness of business of a Restricted Subsidiary owing to and held by the Company or any Restricted Subsidiary; provided, however, that that:
(A) if the Issuer or any Guarantor is the obligor under such Currency Hedging Agreements do Indebtedness and the obligee is not increase the Issuer or a Guarantor, such Indebtedness or other obligations is unsecured and ((i) except in respect of the Company or any Restricted Subsidiary outstanding other than as a result intercompany current liabilities incurred in the ordinary course of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed business in connection with the acquisition cash management operations of the Company and its Restricted Subsidiaries and (ii) only to the extent legally permitted (the Company and its Restricted Subsidiaries having completed all procedures required in the reasonable judgment of directors or development officers of real the obligee or personalobligor to protect such Persons from any penalty or civil or criminal liability in connection with the subordination of such Indebtedness)) expressly subordinated in right of payment to prior payment in full in cash (whether upon Stated Maturity, movable acceleration or immovable, property otherwise) and the performance in each case incurred for full of its obligations under the purpose Notes and this Indenture; and
(B) (i) any subsequent issuance or transfer of financing or refinancing all Capital Stock or any part other event which results in any such Indebtedness being beneficially held by a Person other than the Company or a Restricted Subsidiary of the purchase price Company and (ii) any sale or cost other transfer of construction any such Indebtedness to a Person other than the Company or improvement of property used in the business a Restricted Subsidiary of the Company, shall be deemed, in each case, to constitute an aggregate principal amount pursuant Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be;
(4) Indebtedness represented by (A)(i) the Notes (other than any Additional Notes) and any Note Guarantees thereof, (ii) the Piraeus Term Loan outstanding on the Issue Date and (iii) other than with respect to any Italian Guarantor, any “parallel debt” obligation under the Intercreditor Agreement and any Additional Intercreditor Agreement and (B) Refinancing Indebtedness Incurred in respect of any Indebtedness described in sub-clause (A) or (B) of this clause (ix4) not to exceed $35,000,000 outstanding at any time; provided that the principal amount of any Indebtedness permitted under this or clause (ix5) did not in each case of this Section 4.06(b);
(5) Acquired Indebtedness; provided, however, that (i) at the time of incurrence exceed the Fair Market Valuerelevant acquisition or other transaction, as determined by after giving pro forma effect to the Incurrence of such Acquired Indebtedness, (A) the Consolidated Fixed Charge Coverage Ratio of the Company in good faith, would be at least 2.00 to 1.00 or (B) the Consolidated Fixed Charge Coverage Ratio of the acquired Company would not be less than it was immediately prior to giving effect to such acquisition or constructed asset or improvement so financed;
other transaction and (xii) obligations arising from agreements such Acquired Indebtedness constitutes a Non-Recourse Obligation (except to the extent of any “bad boy” guaranty provided by the Company or a Restricted Subsidiary in respect of such Acquired Indebtedness in the ordinary course of business and in accordance with past practice prior to provide the Issue Date);
(6) Indebtedness under Currency Agreements, Interest Rate Agreements and Commodity Hedging Agreements entered into for bona fide hedging purposes of the Company or its Restricted Subsidiaries and not for speculative purposes (as determined in good faith by the Board of Directors or Senior Management of the Issuer);
(7) Indebtedness Incurred by the Issuer or any Guarantor and represented by Purchase Money Obligations and Indebtedness Incurred by the Company or any Restricted Subsidiary and represented by Capitalized Lease Obligations, and in each case any Refinancing Indebtedness in respect thereof, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (7) and then outstanding, will not exceed at any time (a) for the first 12 months following the Issue Date, the greater of (A) €90 million and (B) [•]% of Total Assets and (b) thereafter, the greater of (A) €75 million and (B) [•]% of Total Assets; provided, that such Indebtedness is not Incurred for the purpose of purchasing Portfolio Assets or acquiring an Acquired Business;
(8) Indebtedness in respect of (a) workers’ compensation claims, self-insurance obligations, performance, indemnity, surety, judgment, appeal, advance payment, customs, VAT or other tax or other guarantees or other similar bonds, instruments or obligations and completion guarantees and warranties provided by the Company or a Restricted Subsidiary or relating to liabilities, obligations or guarantees Incurred in the ordinary course of business or in respect of any governmental requirement, (b) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business or in respect of any governmental requirement; provided, however, that upon the drawing of such letters of credit or similar instruments, the obligations are reimbursed within 30 days following such drawing, (c) the financing of insurance premiums in the ordinary course of business and (d) any customary cash management, cash pooling or netting or setting off arrangements in the ordinary course of business and in accordance with past practice prior to the Issue Date;
(9) Indebtedness arising from agreements providing for customary guarantees, indemnification, customary purchase price closing adjustments, obligations in respect of earn-outs or other adjustments of purchase price or, in each case, similar obligations, in each case, incurred Incurred or assumed in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of or Person or any Capital Stock of Sytner Group plc in connection with the tender offer for all a Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring or disposing of such Capital Stock;
(xii) Indebtedness business or assets or such Subsidiary for the purpose of financing such acquisition or disposition); provided that, in the case of a disposition, the maximum liability of the Sytner Group plc Company and any of its Restricted Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters all such Indebtedness shall at no time exceed the gross proceeds, including the fair market value of credit or other credit support provided non-cash proceeds (measured at the time received and without giving effect to any subsequent changes in value), actually received by the Company and its Restricted Subsidiaries in connection with such disposition;
(10) (A) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business provided business; provided, however, that the obligations under such letters Indebtedness is extinguished within five Business Days of credit are supported by letters of credit or other credit support issued or provided under the Credit AgreementIncurrence;
Appears in 1 contract
Sources: Indenture (Intrum ZRT)
Limitation on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except:
(a) The Company will not, and will not cause or permit Indebtedness of any of its Restricted Subsidiaries to, create, issue, incur, assume, guarantee or otherwise in Loan Party created under any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness Loan Document (including in respect of any Acquired IndebtednessExisting Letters of Credit), unless such Indebtedness is incurred by the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary and, in each case, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least equal to or greater than 2.00:1.;
(b) Notwithstanding the foregoing, the Company and, to the extent specifically set forth below, the Restricted Subsidiaries may incur each and all Indebtedness of the following (collectively, the "Permitted Indebtedness"):
(i) Indebtedness of the Company under Borrower to any Subsidiary Guarantor, (ii) any Subsidiary Guarantor to the Company's Credit Agreement Borrower or any Subsidiary Guarantor, (including iii) any refinancing Foreign Subsidiary (as defined belowor KMEMC) of such Indebtednessto any other Foreign Subsidiary (or KMEMC), and (iv) any Foreign Subsidiary (or KMEMC) to the Borrower or any Subsidiary Guarantor in an aggregate principal amount (for all such Indebtedness permitted pursuant to this clause (b)(iv)) not to exceed the Foreign Subsidiary Debt Amount (less the aggregate amount of any Cancelled Foreign Debt that was permitted to have been outstanding pursuant to this clause (b)(iv) and that was cancelled pursuant to Section 7.5(k)) at any one time outstanding not to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the Credit Agreement, and guarantees by Guarantors in respect thereof; provided, however, that the foregoing amount shall be reduced by (a) the U.S. dollar equivalent of any loan notes referred to in clause (xi) of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) the aggregate amount of Indebtedness incurred pursuant to clause (xii) of this Section 1008(b) in excess of $20,000,000;
(ii) Indebtedness of the Company or any Restricted Subsidiary under any Inventory Facility;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(iv) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition of "Permitted Indebtedness";
(v) Indebtedness of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturity, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (a) pursuant to Interest Rate Agreements designed to protect the Company or any Restricted Subsidiary against fluctuations in interest rates in respect of Indebtedness of the Company or any Restricted Subsidiary as long as such obligations do not exceed the aggregate principal amount of such Indebtedness then outstanding, (b) under any Currency Hedging Agreements, relating to (i) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations to purchase or sell assets or properties, in each case, incurred in the ordinary course of business of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereof;
(ix) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed in connection with the acquisition or development of real or personal, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part of the purchase price or cost of construction or improvement of property used in the business of the Company, in an aggregate principal amount pursuant to this clause (ixb)(iv) shall be evidenced by "floating balance" promissory notes not requiring notations having terms reasonably satisfactory to exceed $35,000,000 outstanding at any time; provided that Administrative Agent, the principal amount sole originally executed counterparts of any Indebtedness permitted under this clause (ix) did not in each case at the time of incurrence exceed the Fair Market Value, which shall be pledged and delivered to Administrative Agent as determined by the Company in good faith, of the acquired or constructed asset or improvement so financedCollateral);
(x) obligations arising from agreements by the Company or a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs or other similar obligations, in each case, incurred in connection with the acquisition or disposition of any business or assets of a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xiic) Indebtedness of the Sytner Group plc and any of its Subsidiaries (including Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed $90,000,000 25,000,000 at any one time; time outstanding;
(xiiid) obligations Indebtedness (other than the Indebtedness (x) of Foreign Subsidiaries owing to the Borrower and Subsidiary Guarantors on the Closing Date as specified on Schedule 1.1(b) hereto or (y) referred to in respect of letters of credit Section 7.2(f)) outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or other credit support provided by the Company and its Restricted Subsidiaries extensions thereof (without any increase in the ordinary course principal amount thereof (other than any increase not exceeding the amount of business provided that any fees, premium, if any, and financing costs relating to such refinancing) or any shortening of the obligations under such letters maturity of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreementany principal amount thereof);
Appears in 1 contract
Sources: Credit Agreement (Tronox Inc)
Limitation on Indebtedness. (a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries Subsidiary to, createIncur any Indebtedness; provided, issuehowever, incur, assume, guarantee or otherwise in any manner become directly or indirectly liable for the payment of or otherwise incur, contingently or otherwise (collectively, "incur"), any Indebtedness (including any Acquired Indebtedness), unless such Indebtedness is incurred by that the Company or any Guarantor or constitutes Acquired Indebtedness of a Restricted Subsidiary andmay Incur Indebtedness if on the date of the Incurrence of such Indebtedness, in each caseafter giving effect to the Incurrence thereof, the Company's Consolidated Fixed Charge Coverage Ratio for the most recent four full fiscal quarters for which financial statements are available immediately preceding the incurrence of such Indebtedness taken as one period is at least would be equal to or greater than 2.00:12.00:1.00.
(b) Notwithstanding the foregoingforegoing Section 407(a), the Company and, to the extent specifically set forth below, the and its Restricted Subsidiaries may incur each and all of Incur the following (collectively, the "Permitted Indebtedness")::
(i) Indebtedness of the Company under the Company's Incurred pursuant to any Credit Agreement Facility (including any refinancing (as defined below) of such Indebtedness) in an aggregate principal amount at any one time outstanding but not limited to exceed $920,000,000 in any case under the Credit Agreement or in respect of letters of credit under the or bankers’ acceptances issued or created thereunder) and Indebtedness Incurred other than pursuant to any Credit AgreementFacility, and guarantees by Guarantors (without limiting the foregoing), in each case, any Refinancing Indebtedness in respect thereof; provided, howevereither (I) in a maximum principal amount at any time outstanding not exceeding in the aggregate the amount equal to (A) $2,980.0 million, that the foregoing amount shall be reduced by plus (aB) the U.S. dollar equivalent amount equal to the greater of (x) $1,900.0 million and (y) an amount equal to (1) the North American Borrowing Base less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Entities that are Domestic Subsidiaries and then outstanding pursuant to Section 407(b)(ix), plus (C) in the event of any loan notes referred to in clause (xi) refinancing of this Section 1008(b) not collateralized by cash in excess of $40,000,000 and (b) any such Indebtedness, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing or (II) if on the date of the Incurrence of such Indebtedness incurred pursuant (other than any such Refinancing Indebtedness), after giving effect to clause such Incurrence (xiior, at the Company’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the Incurrence of the entire committed amount of such Indebtedness (such committed amount, a “Ratio Tested Committed Amount”), in which case such Ratio Tested Committed Amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this clause) the Consolidated Secured Leverage Ratio would be equal to or less than 4.50:1.00; and (in the case of this Section 1008(bsubclause (II)) in excess of $20,000,000any Refinancing Indebtedness with respect to any such Indebtedness (or Ratio Tested Committed Amount);
(ii) Indebtedness (A) of any Restricted Subsidiary to the Company, or (B) of the Company or any Restricted Subsidiary to any Restricted Subsidiary; provided that, in the case of this Section 407(b)(ii), any subsequent issuance or transfer of any Capital Stock of such Restricted Subsidiary to which such Indebtedness is owed, or other event, that results in such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of such Indebtedness (except to the Company or a Restricted Subsidiary) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Section 407(b)(ii);
(iii) Indebtedness represented by the Notes (other than Additional Notes), any Indebtedness (other than the Indebtedness under the Senior Credit Facilities described in Section 407(b)(i)) outstanding (or Incurred pursuant to any commitment outstanding) on the Issue Date and any Refinancing Indebtedness Incurred in respect of any Indebtedness (or unutilized commitments) described in this Section 407(b)(iii) or Section 407(a) above;
(iv) Purchase Money Obligations, Capitalized Lease Obligations, and in each case any Refinancing Indebtedness with respect thereto; provided that the aggregate principal amount of such Purchase Money Obligations Incurred to finance the acquisition of Capital Stock of any Person at any time outstanding pursuant to this clause shall not exceed an amount equal to the greater of $300.0 million and 5.0% of Consolidated Total Assets;
(v) Indebtedness (A) supported by a letter of credit issued pursuant to any Credit Facility in a principal amount not exceeding the face amount of such letter of credit or (B) consisting of accommodation guarantees for the benefit of trade creditors of the Company or any of its Restricted Subsidiaries;
(vi) (A) Guarantees by the Company or any Restricted Subsidiary of Indebtedness or any other obligation or liability of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407), or (B) without limiting Section 413, Indebtedness of the Company or any Restricted Subsidiary arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of the Company or any Restricted Subsidiary (other than any Indebtedness Incurred by the Company or such Restricted Subsidiary, as the case may be, in violation of this Section 407);
(vii) Indebtedness of the Company or any Restricted Subsidiary under (A) arising from the honoring of a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business, or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, Incurred in connection with the acquisition or disposition of any Inventory Facilitybusiness, assets or Person;
(iii) Indebtedness of the Company pursuant to the Securities or the Exchange Securities and Indebtedness of any Guarantor pursuant to a guarantee of the Securities or the Exchange Securities;
(ivviii) Indebtedness of the Company or any Restricted Subsidiary outstanding on the initial Issue Date and not otherwise referred to in this definition respect of "Permitted Indebtedness";
(vA) Indebtedness letters of the Company owing to a Restricted Subsidiary; provided that any Indebtedness of the Company owing to a Restricted Subsidiary that is not a Guarantor is made pursuant to an intercompany note in the form attached as Annex A to this Indenture and is unsecured and subordinated in right of payment from and after such time as the Securities shall become due and payable (whether at Stated Maturitycredit, acceleration or otherwise) to the payment and performance of the Company's obligations under the Securities and to all Senior Indebtedness; provided, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the Company bankers’ acceptances or other obligor not permitted by this clause (v);
(vi) Indebtedness of a Restricted Subsidiary owing similar instruments or obligations issued, or relating to the Company liabilities or another Restricted Subsidiary; provided that any such Indebtedness is made pursuant to an intercompany note in the form attached as Annex A to this Indenture; providedobligations incurred, further, that any disposition, pledge or transfer of any such Indebtedness to a Person (other than a disposition, pledge or transfer to the Company or a Restricted Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the obligor not permitted by this clause (vi);
(vii) guarantees of any Restricted Subsidiary made in accordance with the provisions of Section 1013;
(viii) obligations of the Company or any Guarantor entered into in the ordinary course of business (aincluding those issued to governmental entities in connection with self-insurance under applicable workers’ compensation statutes), (B) pursuant completion guarantees, surety, judgment, appeal or performance bonds, or other similar bonds, instruments or obligations, provided, or relating to Interest Rate Agreements designed to protect liabilities or obligations incurred, in the ordinary course of business, (C) Hedging Obligations, (D) Management Guarantees or Management Indebtedness, (E) the financing of insurance premiums in the ordinary course of business, (F) take-or-pay obligations under supply arrangements incurred in the ordinary course of business, (G) netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary against fluctuations maintains an overdraft, cash pooling or other similar facility or arrangement, (H) Junior Capital in interest rates an aggregate principal amount at any time outstanding not exceeding the greater of $250.0 million and 4.50% of Consolidated Total Assets or (I) Bank Products Obligations;
(ix) Indebtedness (A) of a Special Purpose Subsidiary secured by a Lien on all or part of the assets disposed of in, or otherwise Incurred in respect of connection with, a Financing Disposition or (B) otherwise Incurred in connection with a Special Purpose Financing; provided that (1) such Indebtedness of is not recourse to the Company or any Restricted Subsidiary as that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings); (2) in the event such Indebtedness shall become recourse to the Company or any Restricted Subsidiary that is not a Special Purpose Subsidiary (other than with respect to Special Purpose Financing Undertakings), such Indebtedness will be deemed to be, and must be classified by the Company as, Incurred at such time (or at the time initially Incurred) under one or more of the other provisions of this Section 407 for so long as such obligations do not exceed Indebtedness shall be so recourse; and (3) in the aggregate principal amount event that at any time thereafter such Indebtedness shall comply with the provisions of the preceding subclause (1), the Company may classify such Indebtedness in whole or in part as Incurred under this Section 407(b)(ix);
(x) Indebtedness of (A) the Company or any Restricted Subsidiary Incurred to finance or refinance, or otherwise Incurred in connection with, any acquisition of assets (including Capital Stock), business or Person, or any merger or consolidation of any Person with or into the Company or any Restricted Subsidiary, or (B) any Person that is acquired by or merged or consolidated with or into the Company or any Restricted Subsidiary (including Indebtedness thereof Incurred in connection with any such acquisition, merger or consolidation); provided that on the date of such acquisition, merger or consolidation, after giving effect thereto, either (1) the Company would have a Consolidated Total Leverage Ratio equal to or less than 5.00:1.00 or (2) the Consolidated Total Leverage Ratio of the Company would equal or be less than the Consolidated Total Leverage Ratio of the Company immediately prior to giving effect thereto; and any Refinancing Indebtedness then outstandingwith respect to any such Indebtedness;
(xi) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto;
(xii) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Stock issued in accordance with Section 407(a), and any Refinancing Indebtedness with respect thereto;
(b) under any Currency Hedging Agreements, relating to (ixiii) Indebtedness of the Company or any Restricted Subsidiary and/or (ii) obligations in an aggregate principal amount at any time outstanding not exceeding an amount equal to purchase or sell assets or properties, in each case, incurred in the ordinary course greater of business $400.0 million and 7.0% of the Company or any Restricted Subsidiary; provided, however, that such Currency Hedging Agreements do not increase the Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable under such Currency Hedging Agreements or (c) under any Commodity Price Protection Agreements which do not increase the amount of Indebtedness or other obligations of the Company or any Restricted Subsidiary outstanding other than as a result of fluctuations in commodity prices or by reason of fees, indemnities and compensation payable under such Commodity Price Protection Agreements, and guarantees by Guarantors in respect thereofConsolidated Total Assets;
(ixxiv) Indebtedness of the Company or any Restricted Subsidiary represented by Capital Lease Obligations or Purchase Money Obligations or other - 118 - Indebtedness incurred or assumed Incurred as consideration in connection with the any acquisition of assets (including Capital Stock), business or development of real or personalPerson, movable or immovable, property in each case incurred for the purpose of financing or refinancing all or any part merger or consolidation of any Person with or into the purchase price Company or cost of construction or improvement of property used in the business of the Companyany Restricted Subsidiary, and any Refinancing Indebtedness with respect thereto, in an aggregate principal amount at any time outstanding not exceeding an amount equal to the greater of $400.0 million and 7.0% of Consolidated Total Assets;
(xv) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to (A) the greater of $400.0 million and 7.0% of Foreign Consolidated Total Assets plus (B) an amount equal (but not less than zero) to (1) the Foreign Borrowing Base less the Foreign Borrowing Base as calculated on March 31, 2015 less (2) the aggregate principal amount of Indebtedness Incurred by Special Purpose Subsidiaries that are Foreign Subsidiaries and then outstanding pursuant to this clause (ix) not of this paragraph (b) in excess of the amount set forth in the immediately preceding clause (1) plus (C) in the event of any refinancing of any Indebtedness Incurred under this clause (x), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred in connection with such refinancing.
(c) For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness Incurred pursuant to exceed $35,000,000 outstanding at and in compliance with, this Section 407, (i) any time; provided other obligation of the obligor on such Indebtedness (or of any other Person who could have Incurred such Indebtedness under this Section 407) arising under any Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation supporting such Indebtedness shall be disregarded to the extent that such Guarantee, Lien or letter of credit, bankers’ acceptance or other similar instrument or obligation secures the principal amount of such Indebtedness; (ii) in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 407(b), the Company, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of the clauses or subclauses of Section 407(b) (including in part under one such clause or subclause and in part under another such clause or subclause); provided that (if the Company shall so determine) any Indebtedness permitted Incurred pursuant to Section 407(b)(iv), Section 407(b)(vii)(H), Section 407(b)(xiii), Section 407(b)(xiv) or Section 407(b)(xv) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed Incurred for the purposes of Section 407(a) from and after the first date on which the Company or any Restricted Subsidiary could have Incurred such Indebtedness under this Section 407(a) without reliance on such clause; (iii) in the event that Indebtedness could be Incurred in part under Section 407(a), the Company, in its sole discretion, may classify a portion of such Indebtedness as having been Incurred under Section 407(a) and the remainder of such Indebtedness as having been Incurred under Section 407(b); (iv) the amount of Indebtedness issued at a price that is less than the principal amount thereof shall be equal to the amount of the liability in respect thereof determined in accordance with GAAP; (v) the principal amount of Indebtedness outstanding under any clause of Section 407(b) shall be determined after giving effect to the application of proceeds of any such Indebtedness to refinance any such other Indebtedness; (ixvi) did not if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in each case reliance on any provision of Section 407(b) measured by reference to a percentage of Consolidated Total Assets at the time of incurrence Incurrence or Foreign Consolidated Total Assets at the time of Incurrence, and such refinancing would cause such percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, to be exceeded if calculated based on the Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, on the date of such refinancing, such percentage of Consolidated Total Assets or Foreign Consolidated Total Assets, as applicable, shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) so long as the principal amount of such refinancing Indebtedness does not exceed the Fair Market Valueprincipal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing; and (vii) if any Indebtedness is Incurred to refinance Indebtedness initially Incurred (or, Indebtedness Incurred to refinance Indebtedness initially Incurred) in reliance on any provision of Section 407(b) measured by a dollar amount, such dollar amount shall not be deemed to be exceeded (and such refinancing Indebtedness shall be deemed permitted) to the extent the principal amount of such newly Incurred Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) Incurred or payable in connection with such refinancing. Notwithstanding anything herein to the contrary, Indebtedness outstanding on the Issue Date under the Senior Credit Facilities shall be classified as determined by the Company in good faithIncurred under Section 407(b), of the acquired or constructed asset or improvement so financed;and not under Section 407(a).
(xd) obligations arising from agreements For purposes of determining compliance with any provision of Section 407(b) (or any category of Permitted Liens described in the definition thereof) measured by the Company a dollar amount or by reference to a Restricted Subsidiary to provide for indemnification, customary purchase price closing adjustments, earn-outs percentage of Consolidated Total Assets or other similar obligationsForeign Consolidated Total Assets, in each case, incurred for the Incurrence of Indebtedness or Liens securing Indebtedness denominated in connection with a foreign currency, the acquisition dollar equivalent principal amount of such Indebtedness Incurred pursuant thereto shall be calculated based on the relevant currency exchange rate in effect on the date that such Indebtedness was Incurred, in the case of term Indebtedness, or disposition first committed, in the case of revolving or deferred draw Indebtedness; provided that (x) the dollar equivalent principal amount of any business such Indebtedness outstanding on the Issue Date shall be calculated based on the relevant currency exchange rate in effect on the Issue Date, (v) if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency (or assets in a different currency from such Indebtedness so being Incurred), and such refinancing would cause the applicable provision of Section 407(b) (or category of Permitted Liens) measured by a Restricted Subsidiary;
(xi) loan notes, if any, issued to a holder of the shares of Capital Stock of Sytner Group plc in connection with the tender offer for all of such Capital Stock;
(xii) Indebtedness of the Sytner Group plc and any of its Subsidiaries in an aggregate principal amount not to exceed $90,000,000 at any one time; (xiii) obligations in respect of letters of credit or other credit support provided by the Company and its Restricted Subsidiaries in the ordinary course of business provided that the obligations under such letters of credit are supported by letters of credit or other credit support issued or provided under the Credit Agreement;dolla
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Sources: Indenture (Univar Inc.)