Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following: (a) Indebtedness arising under the Credit Documents; (b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness; (c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences; (d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims); (e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii); (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness; (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 Funding Date as the result of a Permitted Acquisition; provided that: (A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof, (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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period; (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; (j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that: (A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10; (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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and (D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 3 contracts
Sources: Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries toNo Transaction Party (other than ILFC) may incur, create, incurissue, assume assume, guarantee or suffer to exist otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, whether present or future, any Indebtedness other than (i) in the following:
(a) case of the Obligors, Indebtedness arising under the Credit Loan Documents;
; (b) Indebtedness (including Guarantee Obligations thereunderii) in respect the case of the Senior Notes and any feesGrandparent Holdco, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
Junior Lien Debt; (c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(diii) Indebtedness in respect of guarantees by any bankers’ acceptanceBorrower Party of any obligation of any Transaction Party (other than of ILFC, bank guaranteesGrandparent Holdco or Parent Holdco); (iv) Leases and obligations to Lessees, letter of credittrustees and others under the Leases, warehouse receipt trust agreements and other documents related thereto, including any Indebtedness owed to any Lessee under any such agreement or similar facilities entered into in the ordinary course of business (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 Lease with respect to reimbursement-type obligations regarding workers compensation claims);
maintenance contributions, redelivery condition adjustment payments or any other obligation of any Subsidiary Holdco, Intermediate Lessee or Owner Subsidiary to a Lessee; (ev) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower any Transaction Party owed to ILFC 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) an Acceding Guarantor and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this AgreementPledged Debt; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligationsthat, 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 no such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted unless (x) such Restricted Subsidiary shall have also provided a guarantee Indebtedness has been subordinated to the Obligations and the Junior Lien Obligations pursuant to the terms of the Obligations substantially on the terms set forth in the Guarantee;
(f) Guarantee Obligations (i) 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 11.5(b)(iv)Intercreditor Agreement, (viii), (xv), (xviy) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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)any Pledged Debt Collateral, the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Debt Collateral has been pledged to the Administrative Collateral Agent to for the extent required under Section 10.10(c) and (2) such Person executes a supplement to each benefit of the Guarantee, Secured Parties pursuant to the Security Agreement and the Pledge AgreementCollateral Agent has a first priority perfected security interest in such Pledged Debt Collateral and (z) in the case of any Pledged Debt Collateral, in each case such Pledged Debt Collateral is evidenced by an Instrument which has been delivered and indorsed to the extent Collateral Agent; (vi) Indebtedness required under Section 10.10in connection with repossession of an Aircraft or any engine; provided that and (vii) Indebtedness in favor of the assets covered issuer of a surety, letter of credit or similar instrument to be obtained by such pledges and security interests mayany Subsidiary Holdco, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed Intermediate Lessee or Owner Subsidiary in connection with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements repossession or detention of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred an Aircraft or other enforcement action under Section 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Lease.
Appears in 3 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (International Lease Finance Corp), Term Loan Credit Agreement
Limitation on Indebtedness. (A) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower, (ii) any Restricted Subsidiary Guarantor to the Borrower or its any Restricted Subsidiaries so long as such Indebtedness Subsidiary of the Borrower, (iii) any Restricted Subsidiary of the Borrower which is evidenced by an intercompany note not a Subsidiary Guarantor to any other Restricted Subsidiary of the Borrower which is not a Subsidiary Guarantor and (iv) subject to subordination terms acceptable compliance with the requirements of Section 10.5, the Borrower or any Subsidiary Guarantor to any Restricted Subsidiary of the Borrower which is not a Subsidiary Guarantor; provided, that, any Indebtedness of the Borrower or any Subsidiary Guarantor to any Restricted Subsidiary which is not a Subsidiary Guarantor shall be subordinated in right of payment to the Administrative Agent, to the extent permitted by Requirements Obligations following an Event of Law and not giving rise to material adverse tax consequencesDefault;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries which are not Subsidiary Guarantors in respect of Indebtedness of the 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 notAgreement, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower or Subsidiary Guarantors in respect of Indebtedness of the Borrower or Restricted Subsidiaries that are Subsidiary Guarantors that is permitted to be incurred under this Agreement (including where the Parent is the co-issuer of such Indebtedness, a guarantee of the obligations of Parent thereunder) and (iii) subject to compliance with the requirements of Section 10.5, the Borrower or Subsidiary Guarantors in respect of Indebtedness of Restricted Subsidiaries that are not Subsidiary Guarantors that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) if by a Restricted Foreign Subsidiary of any Indebtedness of the Borrower or a Subsidiary Guarantor and (b) in respect of Indebtedness being guaranteed under this Section 11.1(e) that is subordinated to the Obligations, unless such Guarantee Obligations shall be is made by a Guarantor and such Guarantee is unsecured and subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders same extent as those contained in the subordination of such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) 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 Guaranteeso Guaranteed;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)in an aggregate amount not to exceed $2,000,000 at any time outstanding;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) (A) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures and (iiB) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof and (B) Capital Leases entered into pursuant to subclause (iii) above (below, provided that, in that the case aggregate amount of each of the foregoing subclauses Indebtedness incurred pursuant to this subclause (i) and (when aggregated with the amount of refinancing Indebtedness in respect thereof outstanding pursuant to subclause (iii) below) shall not exceed $75,000,000 at any time outstanding, (ii), the Borrower shall be ) Indebtedness arising under Capital Leases entered into in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness connection with the Financial Performance Covenants, as such covenants are 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); Permitted Sale Leasebacks and (iii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i) or incurred (ii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the Effective Date (other than the Subordinated Notes) and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on in respect of Hedge Agreements entered into in the Funding Date listed on Schedule 11.1 ordinary course of business (and not for speculative purposes) in order to protect the Borrower or any of the Restricted Subsidiaries against fluctuations in interest rates, currency exchange rates or commodity prices;
(i) Indebtedness in respect of the Subordinated Notes and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect thereof;
(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 Funding Effective Date as the result of a Permitted Acquisition; an Investment permitted by Section 10.5, provided that:
that (Ax) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
thereof and (By) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary Subsidiary) and (ii) any refinancing, refunding, renewal or is the survivor extension of a merger with such Person or any of its Subsidiaries),
Indebtedness specified in subclause (Ci) (1) the Stock of such Person is pledged to the Administrative Agent above, provided that except to the extent required under Section 10.10(cotherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (2y) the direct and contingent obligors with respect to such Person executes a supplement Indebtednesses are not changed in respect thereof in an aggregate principal amount outstanding pursuant to each this clause (j) not to exceed $20,000,000 at any time;
(k) (i) the Initial Secured Notes, (ii) Permitted Additional Secured Notes, (iii) the Initial PIK Convertible Notes, (iv) Permitted Additional PIK Convertible Notes, (v) Permitted Junior Lien or Unsecured Notes and (vi) Permitted Refinancing Indebtedness in respect of the Guarantee, the Security Agreement and the Pledge Agreement, Indebtedness set forth in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements subclauses (i) through (v) of this clause (Ck);
(l) Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed $75,000,000 (which amount shall not apply to include the aggregate outstanding amount at any time of any Indebtedness of the type that could have been incurred under Section 11.1(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 Covenants, as such covenants are recomputed as Restricted Foreign Subsidiaries existing at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrenceEffective Date); and
(Dm) such additional Indebtedness, provided that the aggregate amount of Indebtedness is outstanding at any time pursuant to this clause (m) shall not guaranteed exceed $100,000,000.
(B) Neither Parent nor Holdings will create, incur, assume or suffer to exist any Indebtedness except (1) with respect to Parent, Indebtedness in respect of cash collateral pursuant to the Forward Purchase Contract, the Initial PIK Convertible Notes, Additional PIK Convertible Notes and any Permitted Refinancing Indebtedness in respect by thereof, Qualified PIK Securities and Indebtedness representing deferred compensation to directors and employees of Parent, Holdings, the Borrower or any of the Restricted Subsidiaries incurred in the ordinary course of business or in connection with the Transactions and (2) guarantee obligations of Indebtedness permitted by clauses (a) and (k) of Section 10.1(A), the Subordinated Notes and any Permitted Refinancing Indebtedness of the Subordinated Notes.
(C) None of Parent, Holdings or the Borrower will, nor will they permit any Subsidiary Guarantor except to to, issue any preferred stock or other preferred equity interests, other than, in the extent permitted under Section 11.5;case of Parent, Qualified PIK Securities.
Appears in 3 contracts
Sources: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, createdirectly or indirectly, incurIncur, assume contingently or suffer otherwise, with respect to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Credit Documents;
, including pursuant to Sections 2.14 and 2.15, and (bii) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Credit Agreement Refinancing Indebtedness issued or incurred Incurred to Refinance (in whole or in part) such Indebtedness;
(ci) Intercompany loans Indebtedness arising under the Second Lien Credit Documents (including any guarantees in respect thereof) in an aggregate principal amount not to exceed $150,000,000; and advances made by the Borrower (ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness; provided that, notwithstanding any Restricted Subsidiary or made by any Restricted Subsidiary other provision herein to the Borrower or its Restricted Subsidiaries so long as contrary, no Person other than a Credit Party shall at any time be an obligor in respect of any such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesIndebtedness;
(di) Indebtedness constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letter letters of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice (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 with respect to reimbursement-type obligations regarding workers compensation claims), 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;
(ed) subject to compliance with Except as otherwise limited by clauses (a), (b), (h) and (u) of this Section 11.510.1, Guarantee Obligations incurred Incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement; provided that (A) that, if the applicable Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligations, any 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeObligations;
(fe) Guarantee Obligations (i) incurred Incurred in the ordinary course of business or consistent with past practice in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or distribution partners;
(f) (i) Indebtedness (including Financing Lease Obligations and other Indebtedness arising under mortgage financings and purchase money Indebtedness (including any industrial revenue bond, industrial development bond or similar financings)) the proceeds of which are used to finance (whether prior to or after) the acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of property (real or personal), equipment or assets, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets or otherwise Incurred in respect of Capital Expenditures; provided that such Indebtedness is Incurred concurrently with or within 270 days after the completion of the applicable acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement or the making of the applicable Capital Expenditure; provided, further, that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) otherwise constituting Investments permitted in respect of such Indebtedness then outstanding) shall not, except as contemplated by Sections 11.5(b)(iv)the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (viii), I) the greater of (xv), x) $40,000,000 and (xviy) 25% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Internal Financial Statements most recently available on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(g) and (xviiii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness;
(g) (i) Indebtedness constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the Closing Date (and set forth on Schedule 10.1) or Financing Lease Obligations entered into pursuant to Section 10.1(f); provided that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $40,000,000 and (y) 25.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Internal Financial Statements most recently available on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(f); and (ii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness.
(h) Closing Date Indebtedness and any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, in respect of Hedging Agreements Incurred in the ordinary course of business or assumed in connection with, the 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 Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided thatconsistent with past practice and, in the case of each of the foregoing subclauses (i) and (ii)case, the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednesstime entered into, not for speculative purposes;
(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 merger, consolidation or amalgamation 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 Funding Closing Date as the result of an Acquisition or other Investment or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Permitted AcquisitionRestricted Subsidiary; provided that:
(A) subject to Section 1.10, after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred and is continuing;
(B) as of the date that any such Person becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger, consolidation or amalgamation with such a Person or any of its Subsidiaries) or the date that any such assets are acquired by the Borrower or any Restricted Subsidiary and after giving pro forma effect thereto, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(j) does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(k)(i)(B)(I) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(j) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $24,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date plus (II) subject to Section 1.10, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis, with either (X) a Consolidated EBITDA to Consolidated Interest Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest Expense Ratio of the Borrower and the Restricted Subsidiaries immediately prior to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of either (x) not greater than 5.50:1.00 or (y) not greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,;
(BD) such Indebtedness is not guaranteed in any respect by Holdings, 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),) except to the extent permitted under Section 10.5 or Section 10.6;
(CE) (1x) the Capital Stock of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c) 9.11 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2y) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and delivers security arrangements in relation to the Obligations) and a counterpart signature page to the Intercompany Notes, in each case to the extent required under Section 9.10, 9.11 or 9.14(b), as applicable; provided that the requirements of this clause (E) shall not apply to any Indebtedness of the type that could have been Incurred under Section 10.1(f) or Section 10.1(g); and
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance an Acquisition or other Investment; provided that,
(A) subject to Section 1.10, after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred and is continuing;
(B) as of the date of such Incurrence and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(k), does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(j)(i)(B)(I) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(k) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $24,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date plus (II) subject to Section 1.10, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis with either (X) a Consolidated EBITDA to Consolidated Interest Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest Expense Ratio of the Borrower and the Restricted Subsidiaries immediately prior to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of either (x) not greater than 5.50:1.00 or (y) not greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) if such Indebtedness is Incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness shall not be guaranteed in any respect by Holdings, the Borrower or any other Subsidiary Guarantor except to the extent permitted under Section 10.5;
(D) (x) the Capital Stock of any Person acquired in such Acquisitions or other Investment (the “acquired Person”) is pledged to the Collateral Agent to the extent required under Section 9.11 and (y) such acquired Person executes a supplement to each of the Guarantee, the Security DocumentsAgreement and the Pledge Agreement and a counterpart signature page to the Intercompany Note (or alternative guarantee and security arrangements in relation to the Obligations), in each case, to the extent required under Section 10.10;
(B) after giving effect to the incurrence of any such Indebtedness9.10, 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 Covenants9.11 or 9.14(b), as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence)applicable; and
(DE) the terms of such Indebtedness shall be consistent with the requirements set forth in clause (a) and clause (b) and, if applicable, clause (f), of the proviso to the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees);
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) unsecured Indebtedness is not guaranteed in any respect by of obligations of the Borrower or any Restricted Subsidiary Guarantor except to pay the extent permitted under Section 11.5deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are Incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business or consistent with past practice and not in connection with the borrowing of money and (ii) unsecured Indebtedness in respect of intercompany obligations of 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 or consistent with past practice and not in connection with the borrowing of money;
(m) Indebtedness arising from agreements of the Borrower or any Restricted Subs
Appears in 3 contracts
Sources: Incremental Agreement (Grocery Outlet Holding Corp.), Incremental Agreement (Grocery Outlet Holding Corp.), First Lien Credit Agreement (Grocery Outlet Holding Corp.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Sections 2.16 and 2.17 and any Permitted Refinancing Debt incurred to Refinance such Indebtedness);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Interim Loans, the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is 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 and substantially in the form of Exhibit L or otherwise subject to subordination terms acceptable substantially identical to the Administrative Agentsubordination terms set forth in Exhibit L, in each case, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, (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;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e10.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (q), (r) and (xviis);
(g) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the 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 Funding 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 Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the Financial Performance CovenantsCovenant, as such covenants are 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 Funding Date date hereof listed on Schedule 11.1 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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge AgreementAgreement and a joinder to the Intercompany Note, in each case to the extent required under Section 10.109.11; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.210.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(g10.1(g), and
(D) after giving effect to the assumption of any such Indebtedness, to such acquisition and to any related pro forma adjustmentPro Forma Adjustment, the Borrower shall be in compliance on a pro forma basis Pro Forma Basis with the Financial Performance CovenantsCovenant, as such covenants are covenant is recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(jk) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the such Person acquired is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documentsa joinder to the Intercompany Note, in each case, case to the extent required under Section 10.109.11;
(B) after giving effect to the incurrence of any such Indebtedness, to such acquisition and to any related pro forma adjustmentPro Forma Adjustment, the Borrower shall be in compliance on a pro forma basis Pro Forma Basis with the Financial Performance CovenantsCovenant, as such covenant are is recomputed as at the last day of 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 any respect by the Borrower or any Subsidiary Guarantor except to the extent (1) permitted under Section 11.510.5 and (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 Adjusted Financial Performance Covenant, as such covenant is recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such 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. The Borrower will not, and will not permit any of the Restricted its Subsidiaries to, to create, incur, incur or assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under outstanding as of the Closing Date and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof, other than by the amount of any necessary pre-payment premiums, unpaid accrued interest and other costs of refinancing, or any shortening of the final maturity of any principal amount thereof to a date prior to the Revolving Credit DocumentsTermination Date);
(b) Indebtedness of any Insurance Subsidiary incurred or issued in the ordinary course of its business or in securing insurance-related obligations (including Guarantee Obligations thereunderthat do not constitute Indebtedness) of such Insurance Subsidiary and letters of credit, bank guarantees, surety bonds or similar instruments issued for the account of any Insurance Subsidiary in respect the ordinary course of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred its business or in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance securing insurance-related obligations (that do not constitute Indebtedness) of such IndebtednessInsurance Subsidiary;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptanceletters of credit, bank guarantees, letter bids, leases, statutory obligations, surety and appeal bonds, or performance bonds or other obligations of credit, warehouse receipt or similar facilities entered into a like nature arising in the ordinary course of business and not for capital raising purposes and issued for the account of any Non-Regulated Operating Subsidiary;
(including d) short-term Indebtedness (i.e. with a maturity of less than one year when issued, provided that such Indebtedness may include an option to extend for up to an additional one year period) of any Insurance Subsidiary incurred or issued to provide short-term liquidity to facilitate claims payment in respect the event 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)catastrophe;
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of a Subsidiary acquired after the Borrower Closing Date or other Restricted Subsidiaries that is permitted to be incurred under this Agreement (except that a Restricted corporation merged into or consolidated with a Subsidiary that after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness, in each case, exists at the time of such acquisition, merger or consolidation and is not a Credit Party may notcreated in contemplation of such event, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e) is subordinated to the Obligationsas well as any refinancings, 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 refunds, renewals or extensions of such Indebtedness and (B) no guarantee without increase in the principal amount thereof other than by any Restricted Subsidiary the amount of any Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee necessary pre-payment premiums, unpaid accrued interest and other costs of the Obligations substantially on the terms set forth in the Guaranteerefinancing);
(f) Indebtedness owing or issued by a Subsidiary to any other Subsidiary or to the Borrower;
(g) Guarantee Obligations (i) incurred made by the Guarantors in respect of the ordinary course obligations of business the Borrower or by a Subsidiary in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Indebtednessanother Subsidiary;
(h) Indebtedness outstanding on under the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessLoan Documents;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such IndebtednessGuarantor;
(j) Indebtedness represented by Qualified Securities, Trust Preferred Securities or Mandatory Convertible Securities (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent except to the extent required under Section 10.10(csuch Indebtedness is included in the calculation of Total Consolidated Debt);
(k) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) after giving effect to the incurrence of any such constituting Indebtedness, liabilities representing collateral held with respect to such acquisition securities lending activities and to any related pro forma adjustment, not exceeding 10% of the Borrower shall be in compliance on a pro forma basis with Borrower’s consolidated investment assets as of the Financial Performance Covenants, as such covenant are recomputed as at the last day end of 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 Maturity Date (determined at the time of issuance or incurrencerecent fiscal quarter for which consolidated financial statements have been furnished pursuant to Section 6.1(a); and
(Dl) other Indebtedness of such Subsidiaries, provided that at the time such Indebtedness is incurred or issued, the aggregate principal amount of such Indebtedness when added to all other Indebtedness incurred or issued pursuant to this clause (l) and then outstanding, does not guaranteed in any respect by exceed 15% of the Borrower or any Subsidiary Guarantor except to Consolidated Net Worth of the extent permitted under Section 11.5;Borrower.
Appears in 3 contracts
Sources: Credit Agreement (White Mountains Insurance Group LTD), Credit Agreement (White Mountains Insurance Group LTD), Credit Agreement (White Mountains Insurance Group LTD)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries toNo Transaction Party (other than ILFC) may incur, create, incurissue, assume assume, guarantee or suffer to exist otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, whether present or future, any Indebtedness other than (i) in the following:
(a) case of the Obligors, Indebtedness arising under the Credit Loan Documents;
; (b) Indebtedness (including Guarantee Obligations thereunderii) in respect the case of the Senior Notes and any feesParent Holdco, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
Junior Lien Debt; (c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(diii) Indebtedness in respect of guarantees by any bankers’ acceptanceBorrower Party of any obligation of any Transaction Party (other than of ILFC or Parent Holdco); (iv) Leases and obligations to Lessees, bank guaranteestrustees and others under the Leases, letter of credittrust agreements and other documents related thereto, warehouse receipt including any Indebtedness owed to any Lessee under any such agreement or similar facilities entered into in the ordinary course of business (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 Lease with respect to reimbursement-type obligations regarding workers compensation claims);
maintenance contributions, redelivery condition adjustment payments or any other obligation of any Subsidiary Holdco, Intermediate Lessee or Owner Subsidiary to a Lessee; (ev) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted any Transaction Party owed to be incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) ILFC and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this AgreementPledged Debt; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligationsthat, 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 no such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted unless (x) such Restricted Subsidiary shall have also provided a guarantee Indebtedness has been subordinated to the Obligations and the Junior Lien Obligations pursuant to the terms of the Obligations substantially on the terms set forth in the Guarantee;
(f) Guarantee Obligations (i) 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 11.5(b)(iv)Intercreditor Agreement, (viii), (xv), (xviy) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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)any Pledged Debt Collateral, the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Debt Collateral has been pledged to the Administrative Collateral Agent to for the extent required under Section 10.10(c) and (2) such Person executes a supplement to each benefit of the Guarantee, Secured Parties pursuant to the Security Agreement and the Pledge AgreementCollateral Agent has a first priority perfected security interest in such Pledged Debt Collateral and (z) in the case of any Pledged Debt Collateral, in each case such Pledged Debt Collateral is evidenced by an Instrument which has been delivered and indorsed to the extent Collateral Agent; (vi) Indebtedness required under Section 10.10in connection with repossession of an Aircraft or any Engine; provided that and (vii) Indebtedness in favor of the assets covered issuer of a surety, letter of credit or similar instrument to be obtained by such pledges and security interests mayany Subsidiary Holdco, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed Intermediate Lessee or Owner Subsidiary in connection with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements repossession or detention of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred an Aircraft or other enforcement action under Section 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Lease.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (International Lease Finance Corp), Term Loan Credit Agreement (ILFC Holdings, Inc.), Term Loan Credit Agreement (International Lease Finance Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Sections 2.16 and 2.17 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes Secured Second Lien Term Loan Facility (and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing foregoing) in an aggregate principal amount outstanding not in excess of $125,000,000 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is 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 and substantially in the form of Exhibit H or otherwise subject to subordination terms acceptable substantially identical to the Administrative Agentsubordination terms set forth in Exhibit H, in each case, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, (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;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e10.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (q), (r) and (xviis);
(g) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred prior to or within 270 days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) 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 Funding 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 Pro Forma Compliance immediately after giving effect to the incurrence of such Indebtedness with (and the Financial Performance Covenants, as such covenants are recomputed as at the last day use of the most recently ended Test Period as if such incurrence had occurred on the first day of such Test Periodproceeds thereof); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the Funding Date listed date hereof (provided that any Indebtedness that is in excess of $1,000,000 individually shall only be permitted under this clause (h) to the extent such Indebtedness is set forth on Schedule 11.1 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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Equity Interests of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement to each of the Guarantee, Guarantee and the Security Agreement Agreements and a joinder to the Pledge AgreementIntercompany Note, in each case to the extent required under Section 10.109.11; provided that the assets covered by such pledges and security interests may, at the option of the Borrower, to the extent permitted by Section 11.210.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(g10.1(f), and
(D) immediately after giving effect to the assumption of any such Indebtedness, to such acquisition and to any related pro forma adjustmenttransactions, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test PeriodPro Forma Compliance;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(jk) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock Equity Interests of the such Person acquired in such Permitted Acquisition, if any, is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement supplements to each of the Guarantee, the Security Agreement Guarantee and the Pledge Agreement applicable Security Agreements and delivers any other Security Documentsa joinder to the Intercompany Note, in each case, case to the extent required under Section 10.109.11;
(B) immediately after giving effect to the incurrence of any such Indebtedness, to such acquisition and to any related pro forma adjustmenttransactions, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test PeriodPro Forma Compliance;
(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 any respect by the Borrower or any Subsidiary Guarantor except to the extent (1) such guarantee is permitted under Section 11.510.5 and (2) that after giving effect to the incurrence of any such Indebtedness, such acquisition and any related transactions, the Borrower shall be in Pro Forma Compliance;
Appears in 2 contracts
Sources: Credit Agreement (Athlon Energy Inc.), Credit Agreement (Athlon Energy Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, to create, incur, assume issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under (i) the Credit Documents, including pursuant to Sections 2.14 and 2.15 hereof and any Credit Agreement Refinancing Indebtedness and (ii) the Senior Notes Documents in an aggregate outstanding principal amount under this clause (ii) not to exceed $1,300,000,000 and any Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its any Restricted Subsidiaries Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Subsidiary Guarantor shall (x) be evidenced by the Intercompany Note or (y) otherwise be outstanding on the Effective Date so long as such Indebtedness is evidenced by an intercompany note and the Intercompany Note or otherwise subject to subordination terms acceptable substantially identical to the subordination terms set forth in Exhibit N within 60 days of the Effective Date or such later date as the Administrative AgentAgent shall reasonably agree, in each case, to the extent permitted by Requirements of Applicable Law and not giving rise to material adverse tax consequences, (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;
(di) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of workers 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 workers’ compensation claims)) and (ii) Indebtedness supported by Letters of Credit in an amount not to exceed the Stated Amount of such Letters of Credit;
(ed) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)distribution partners;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the proceeds of which are used to finance the acquisition, lease, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance or otherwise issued or incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is issued or incurred concurrently with or within 270 days after the applicable acquisition, lease, construction, lease, repair, replacement expansionreplacement, expansion or improvement of such fixed or capital assets; (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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 Covenants, as such covenants are 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 is not issued or incurred to Refinance acquire Capital Stock of any such Indebtedness;
Person and (hii) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and 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 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 Capitalized Leases, other than Capitalized Leases in effect on the Effective Date (and set forth on Schedule 10.1) 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 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 greater of (x) $10,000,000 and (y) 0.3% of Consolidated Total Assets (measured as of the date such Indebtedness is issued or incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date of incurrence);
(h) Indebtedness (i) outstanding on the 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 among Credit Parties or any 100% Non-Guarantor Pledgee, listed on Schedule 10.1(b)) and any Permitted Refinancing Indebtedness with respect thereto;
(i) Indebtedness in respect of Hedging Agreements incurred in the ordinary course of business and, at the time entered into, not for speculative purposes;
(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 Funding Effective Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary Acquisition or at the time such assets were acquired and, in each case, was not created in 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 Administrative Agent to the extent required similar Investments permitted under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent10.5; 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 2 contracts
Sources: Ninth Amendment (LPL Financial Holdings Inc.), Eighth Amendment (LPL Financial Holdings Inc.)
Limitation on Indebtedness. The Holdings and the Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guarantee or suffer otherwise become directly or indirectly liable, contingently or otherwise with respect to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Credit Documents;
Documents and (bii) Indebtedness under the Revolving Credit Documents (including Guarantee Obligations thereundersubject to the limitations set forth in the Intercreditor Agreement) in respect of the Senior 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 Refinance such Indebtedness;
(cb) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to Indebtedness of (i) Holdings, the Borrower or its Restricted Subsidiaries so long as any Subsidiary Guarantor owing to Holdings, the Borrower or any Subsidiary; provided that any such Indebtedness is owing shall be evidenced by an intercompany note substantially in the form of Exhibit J, (ii) any Subsidiary that is not a Subsidiary Guarantor owing to any other Subsidiary that is not a Subsidiary Guarantor and subject to subordination terms acceptable to the Administrative Agent, (iii) to the extent permitted by Requirements of Law and Section 9.5, any Subsidiary that is not giving rise a Subsidiary Guarantor owing to material adverse tax consequences;Holdings, the Borrower or any Subsidiary Guarantor.
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)) but in any event, not in respect of Hedging Agreements;
(ed) subject to compliance with Section 11.5except as provided in clauses (h), (k), and (l) below, Guarantee Obligations incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) Holdings or the Borrower in respect of Indebtedness of the Borrower or any Restricted Subsidiaries Subsidiary that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Goodman Global Group, Inc.), Term Loan Credit Agreement (Goodman Sales CO)
Limitation on Indebtedness. The Borrower (A) RailAmerica will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) subject to compliance with Section 10.5, Indebtedness of (including Guarantee Obligations thereunderi) in respect RailAmerica to any Restricted Subsidiary, (ii) RATC or any Subsidiary Guarantor to RailAmerica or any Restricted Subsidiary, (iii) any Restricted Subsidiary of the Senior Notes RailAmerica which is not RATC or a Subsidiary Guarantor to any other Restricted Subsidiary of RailAmerica which is not RATC or a Subsidiary Guarantor and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection (iv) subject to compliance with the foregoing and requirements of Section 10.5, RailAmerica, RATC or any Permitted Refinancing Subsidiary Guarantor to any Restricted Subsidiary of RailAmerica which is not RATC or a Subsidiary Guarantor; provided that any Indebtedness issued of any Borrower or incurred any Subsidiary Guarantor that is owed to Refinance such Indebtednessany Restricted Subsidiary which is not RATC or a Subsidiary Guarantor shall be subordinated in right of payment to the Obligations following an Event of Default;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries which are not Subsidiary Guarantors or RATC in respect of Indebtedness of the Borrower RailAmerica 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 notAgreement, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) RailAmerica, RATC or Subsidiary Guarantors in respect of Indebtedness of RailAmerica, RATC or Restricted Subsidiaries that are Subsidiary Guarantors that is permitted to be incurred under this Agreement and (iii) subject to compliance with the Borrower requirements of Section 10.5, RailAmerica or RATC or Subsidiary Guarantors in respect of Indebtedness of Restricted Subsidiaries that are not RATC or Subsidiary Guarantors that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) if the by a Restricted Foreign Subsidiary of any Indebtedness being guaranteed under this Section 11.1(eof RailAmerica, RATC or a Subsidiary Guarantor and (b) in respect of Indebtedness that is subordinated to the Obligations, unless such Guarantee Obligations shall be is made by a Guarantor and such Guarantee is unsecured and subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders same extent as those contained in the subordination of such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) 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 Guaranteeso Guaranteed;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) (A) incurred within 270 180 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures and (iiB) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof and (B) Capital Leases entered into pursuant to subclause (iii) above (below, provided that, in that the case aggregate amount of each of the foregoing subclauses Indebtedness incurred pursuant to this subclause (i) (when aggregated with the amount of refinancing Indebtedness in respect thereof outstanding pursuant to subclause (iii) below) shall not exceed the greater of (x) $80.0 million and (y) 5.0% of Total Assets at any time outstanding, (ii), the Borrower shall be ) Indebtedness arising under Capital Leases entered into in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness connection with the Financial Performance Covenants, as such covenants are 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); Permitted Sale Leasebacks and (iii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i) or incurred (ii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance any such Indebtednessrefinancing, refunding, renewal or extension;
(hf) Indebtedness outstanding on the Funding Closing Date and listed on Schedule 11.1 10.1 and any Permitted Refinancing refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness issued are not changed;
(g) Indebtedness in respect of Hedge Agreements entered into in the ordinary course of business (and not for speculative purposes) in order to protect RailAmerica or incurred to Refinance such Indebtednessany of the Restricted Subsidiaries against fluctuations in interest rates, currency exchange rates or commodity prices;
(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 RailAmerica or any Restricted Subsidiary, in each case after the Funding Closing Date as the result of a Permitted Acquisition; an Investment permitted by Section 10.5, provided that:
that (Ax) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
thereof and (By) such Indebtedness is not guaranteed in any respect by the Borrower RailAmerica or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary Subsidiary) and (ii) any refinancing, refunding, renewal or is the survivor extension of a merger with such Person or any of its Subsidiaries),
Indebtedness specified in subclause (Ci) (1) the Stock of such Person is pledged to the Administrative Agent above, provided that except to the extent required under Section 10.10(cotherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (2y) the direct and contingent obligors with respect to such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, Indebtednesses are not changed in each case to the extent required under Section 10.10respect thereof; provided that the assets covered by such pledges aggregate principal amount of Indebtedness outstanding pursuant to this clause (h) shall not exceed $40.0 million at any time;
(i) (i) the Initial Secured Notes, (ii) Permitted Additional Secured Debt, (iii) Permitted Unsecured Debt and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such (iv) Permitted Refinancing Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements respect of Indebtedness set forth in subclauses (i) through (iii) of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(gi), 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) Indebtedness of Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed the greater of (ix) $25.0 million and (y) 15% of Total Assets of Restricted Foreign Subsidiaries;
(k) additional Indebtedness, provided that the aggregate amount of Indebtedness outstanding at any time pursuant to this clause (k) shall not exceed $100.0 million; provided further that the aggregate amount of Indebtedness incurred by Subsidiaries that are not RATC or Subsidiary Guarantors pursuant to this clause (k) shall not exceed $25.0 million; and
(l) Indebtedness incurred to finance arising from agreements of RailAmerica or a Permitted Acquisition; provided that:
(A) (1) the Stock Restricted Subsidiary providing for indemnification, adjustment of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documentspurchase price or similar obligations, in each case, to incurred or assumed in connection with the extent required under Section 10.10;disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition.
(B) after giving effect to the incurrence of RailAmerica will not, nor will it permit 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 Covenants, as such covenant are recomputed as at the last day of 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 Restricted Subsidiary to, 91 days after the Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in issue any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Disqualified Capital Stock.
Appears in 2 contracts
Sources: Credit Agreement (Railamerica Inc /De), Credit Agreement (Railamerica Inc /De)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness; provided that the Borrower and any Restricted Subsidiary may incur Indebtedness other than (and all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest with regard to such Indebtedness), (x) if immediately before and after giving effect to such incurrence, no Default shall have occurred and be continuing and (y) on a Pro Forma Basis, after giving effect to such incurrence, the followingConsolidated EBITDA to Consolidated Interest Expense Ratio shall be at least 2.0 to 1.0; provided, further, that Restricted Subsidiaries that are not Subsidiary Guarantors may not incur Indebtedness under this provision in an aggregate principal amount outstanding at any time, when combined with the total amount of outstanding Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Sections 10.1(d), 10.1(j), 10.1 (k) and 10.1(n), exceeding $1,250,000,000. Notwithstanding the foregoing, the limitations set forth in the immediately preceding paragraph shall not apply to any of the following items:
(a) Indebtedness arising under the Credit Documents;
(b) subject to compliance with Section 10.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and Borrower or any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with Restricted Subsidiary owed to the foregoing and Borrower or any Permitted Refinancing Restricted Subsidiary; provided that all such Indebtedness issued or incurred of any Credit Party owed to Refinance such Indebtednessany Person that is not a Credit Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of construction and restoration activities and 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);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e10.1(d) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(d) 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 Indebtedness, (B) no guarantee by any Restricted Subsidiary of the Borrower Senior Facility, any Refinanced Bridge Indebtedness or any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeGuarantee and (C) the aggregate amount of Guarantee Obligations incurred by Restricted Subsidiaries that are not Subsidiary Guarantors under this clause (d), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Sections 10.1(j), 10.1(k) and 10.1(n) and the first paragraph of Section 10.1, shall not exceed $1,250,000,000 at any time outstanding;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business (including in respect of construction or restoration activities) in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv10.5(d), (viii10.5(g), (xv10.5(i), (xvi10.5(q), 10.5(t) and (xvii10.5(v);
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofto finance the purchase price, or assumed in connection withcost of design, the acquisition, construction, leaserepair, repairrestoration, replacement, expansion expansion, installation or improvement of fixed or capital assets to finance or otherwise in respect of Capital Expenditures, so long as such Indebtedness, except in the case of Environmental CapEx or Necessary CapEx, is incurred within 270 days of the acquisition, construction, lease, repair, replacement restoration, replacement, expansion, installation or improvement of such fixed or capital assets; assets or incurrence of such Capital Expenditure, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof 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) above; provided, that the aggregate amount of Indebtedness incurred pursuant to this clause (iii) at any time outstanding shall not exceed $400,000,000 and (iv) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i), the Borrower shall be in compliance on a pro forma basis after giving effect (ii) or (iii) above; provided that, except to the incurrence extent otherwise expressly permitted hereunder, the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus the reasonable amounts paid in respect of fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof listed on Schedule 10.1 and the Existing Notes and any modification, replacement, refinancing, refunding, renewal or extension thereof; provided that except to the extent otherwise expressly permitted hereunder, in the case of any such modification, replacement, refinancing, refunding, renewal or extension, (w) the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus the reasonable amounts paid in respect of fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension, (x) the direct and contingent obligors with respect to such Indebtedness are not changed (y)
(1) except in the case of Existing Notes with a Stated Maturity (as of the Closing Date) prior to the latest Maturity Date of any Credit Facility hereunder, no portion of such Indebtedness with matures prior to the Financial Performance Covenants, as such covenants are recomputed as at latest Maturity Date of any Credit Facility hereunder and (2) in the last day case of the most recently ended Test Period Existing Notes with a Stated Maturity (as if such incurrence had occurred on of the first day Closing Date) prior to the latest Maturity Date of any Credit Facility, no portion of such Test Period); Indebtedness matures prior to the Stated Maturity of such Existing Notes as of the Closing Date and (iiiz) if the Indebtedness being refinanced, or any Permitted Refinancing Indebtedness issued guarantee thereof, constituted subordinated Indebtedness, then such replacement or incurred refinancing Indebtedness, or such guarantee, respectively, shall be subordinated to Refinance any such Indebtednessthe Obligations to substantially the same extent;
(h) Indebtedness in respect of Hedging Agreements; provided that (i) other than in the case of Commodity Hedging Agreements, such Hedging Agreements are not entered into for speculative purposes (as determined by the Borrower in its reasonable discretion acting in good faith) and (ii) any speculative Commodity Hedging Agreements must be entered into in the ordinary course of business and shall be consistent with past practice;
(i) Indebtedness and Guarantee Obligations in respect of any Borrower Senior Facility in an aggregate principal amount not to exceed $6,750,000,000 plus the PIK Interest Amount and (ii) any modification, replacement, refinancing, refunding, renewal or extension thereof (including Permitted Additional Notes, the Borrower Senior Term Loans and/or Borrower Senior Exchange Notes); provided that, except to the extent otherwise expressly permitted hereunder, (A) the principal amount of any Indebtedness modified, replaced, refinanced, refunded, renewed or extended pursuant to this clause (ii) does not exceed the principal amount thereof outstanding on immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the Funding Date listed on Schedule 11.1 unpaid accrued interest and premium thereon and any Permitted Refinancing PIK Interest Amounts plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension, (B) the direct and contingent obligor with respect to such Indebtedness issued is not changed, (C) such Indebtedness shall have a final maturity date equal to or incurred later than six months after the latest Maturity Date of any Credit Facility and (D) the terms and conditions (including, if applicable, as to Refinance collateral but excluding as to interest rate and prepayment premium) of any such modified, replaced, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Lenders than the terms and conditions of this Agreement; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees) (such modified, replacement, refinanced, refunded, renewed or extended Indebtedness, “Refinanced Bridge Indebtedness”);
(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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 2 contracts
Sources: Credit Agreement (Energy Future Intermediate Holding CO LLC), Credit Agreement (Energy Future Holdings Corp /TX/)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the foregoing, the limitations set forth in the immediately preceding sentence shall not apply to any of the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including any Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of under the Senior Notes ABL Credit Documents 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 thereof, in an aggregate principal amount not to Refinance exceed the sum of (i) $300,000,000 plus (ii) the principal amount of “Incremental Facilities” (as defined in the ABL Credit Agreement) measured at the time of incurrence pursuant to the ABL Credit Agreement as in effect on the Closing Date plus (iii) solely in the case of any such Refinancing Indebtedness, the Refinancing Increased Amount with respect thereto;
(c) Intercompany loans and advances made by [reserved];
(d) subject to compliance with Section 10.5, Indebtedness of the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(de) subject to compliance with Section 10.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 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;
(f) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claimsclaims and similar obligations);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fg) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessorslessors and licensees, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(ivSection 10.5 (other than Investments permitted by Section 10.5(l) by reference to Section 10.1 and Section 10.5(q), ); provided that this clause (viii), (xv), (xviii) shall not be construed to limit the requirements of Section 10.1(d) and (xviie), or (iii) contemplated by the Plan;
(ih) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofto finance the purchase price, or assumed in connection withcost of design, the acquisition, construction, leaserepair, repairrestoration, replacement, expansion expansion, installation or improvement of fixed or capital assets to finance or otherwise in respect of Capital Expenditures, so long as such Indebtedness is incurred concurrently with or within 270 days of the acquisition, construction, lease, repair, replacement restoration, replacement, expansion, installation or improvement of such fixed or capital assets; (ii) assets or incurrence of such Capital Expenditure, and any Refinancing Indebtedness arising under Capital Leasesthereof, other than (A) Capital Leases in effect on the Funding Date and (B) Capital Leases entered into pursuant an aggregate principal amount not to subclause exceed (i) above the greater of (provided that, in the case of each of the foregoing subclauses (ix) $160,000,000 and (ii), the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence y) 20% of such Indebtedness with the Financial Performance Covenants, as such covenants are recomputed as at the last day of Consolidated EBITDA for the most recently ended Test Period as if such (calculated on a Pro Forma Basis) at the time of incurrence had occurred on or issuance plus the first day principal amount of such Test Period); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness Capital Leases outstanding on the Funding Date listed on Schedule 11.1 and Closing Date, in each case at any Permitted time outstanding plus (ii) solely in the case of any such Refinancing Indebtedness issued or incurred to Refinance such Indebtedness, the Refinancing Increased Amount with respect thereto;
(i) Indebtedness of a Person or Indebtedness attaching permitted to remain outstanding under the Plan, and to the assets 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 Person thatPermitted Acquisition, in either case, becomes a Restricted Subsidiary other permitted Investments or Capital Expenditures; provided that (A) if such Indebtedness is incurred or is assumed by a Restricted Subsidiary that survives is not 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 SubsidiaryCredit Party, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(B) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary other Guarantor except as permitted under Section 10.5, (other than any such Person that so becomes a Restricted Subsidiary B) the aggregate principal amount of Indebtedness incurred or is the survivor of a merger with such Person or any of its Subsidiaries),
(Cassumed under this Section 10.1(k)(i) shall not exceed (1) the Stock greater of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c(x) $160,000,000 and (2y) such Person executes a supplement to each 20% of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of Consolidated EBITDA for the most recently ended Test Period as if such assumption and acquisition had occurred (calculated on a Pro Forma Basis) at the first day time of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and incurrence or issuance plus (2) such Person executes additional amounts if, on a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) Pro Forma Basis after giving effect to the incurrence or assumption of any 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 acquisition Permitted Acquisition or similar Investment and (C) if such Permitted Other Debt incurred (and for the avoidance of doubt, not “assumed”) pursuant to any related pro forma adjustmentthis 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 Borrower Initial Term Loans shall be subject to the adjustment (if applicable) set forth in compliance on a pro forma basis 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 Financial Performance Covenantstotal amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Section 10.1(ee), as such covenant are recomputed as at shall not exceed the last day greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period as if such incurrence and acquisition had occurred (calculated on the first day of such Test Period;
(Ca Pro Forma Basis) 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 Maturity Date (determined at the time of issuance incurrence or incurrence); andissuance, in each case at any time outstanding;
(Dl) 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 is 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 guaranteed in connection with the borrowing of money;
(p) Indebtedness arising from agreements of the Borrower or any respect 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 Guarantor except 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); (ii) 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 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 than the United States;
(cc) Indebtedness owing to the seller of any business or assets permitted to be acquired by the Borrower or any Restricted 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 11.5;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 Indebtedness incurred under any other 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 dividends, the 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 deeme
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Avaya Holdings Corp.), Term Loan Credit Agreement (Avaya Holdings Corp.)
Limitation on Indebtedness. The Borrower will not, and will not cause or permit any of the Restricted Subsidiaries Subsidiary to, createincur or be obligated on any Indebtedness, incureither directly or indirectly, assume by way of Guarantee, suretyship or suffer to exist any Indebtedness otherwise, other than the followingthan:
(a) Indebtedness arising under the Credit DocumentsBorrowers’ Obligations;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums unsecured trade accounts payable and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) normal accruals incurred in the ordinary course of business which are not more than thirty (30) days past due (provided, however, that neither Borrower nor any Subsidiary shall be required to pay any such account payable or other accrual the payment of which is being contested in respect good faith and by appropriate proceedings being diligently conducted and for which adequate reserves in accordance with GAAP have been provided, except that Borrower or such Subsidiary, as the case may be, shall pay or cause to be paid all such accounts payable and accruals forthwith upon the commencement of obligations proceedings to foreclose any Lien which is attached as security therefor, unless such foreclosure is stayed by the filing of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xviian appropriate bond in a manner reasonably satisfactory to Lender);
(ic) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each existing as of the foregoing subclauses date of this Agreement and listed on Schedule 3.10 attached hereto (i) and (ii), the Borrower shall be in compliance on a pro forma basis after without giving effect to any amendment to Schedule 3.10 made by Borrower after the incurrence date of such Indebtedness with the Financial Performance Covenants, this Agreement as such covenants are recomputed as at the last day permitted by Section 3.10 of the most recently ended Test Period as if such incurrence had occurred on the first day of such Test Periodthis Agreement); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(hd) purchase money Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred solely to Refinance such Indebtednessfinance Capital Expenditures;
(ie) 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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence)Capitalized Lease Obligations; and
(Df) such Indebtedness is contingent obligations, none of which shall be for guaranties of payment for borrowed money, not guaranteed in to exceed $100,000 at any respect by one time without the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;prior written consent of Lender.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Accentia Biopharmaceuticals Inc), Revolving Credit Agreement (Accentia Biopharmaceuticals Inc)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, createdirectly or indirectly, incurIncur, assume contingently or suffer otherwise, with respect to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Loan Documents, including pursuant to Sections 2.14 and 2.15, and (ii) any Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Agreement Refinancing Indebtedness issued or incurred Incurred to Refinance (in whole or in part) such Indebtedness;
(ci) Intercompany loans Indebtedness arising under the Senior Secured Notes Documents (including any guarantees in respect thereof) in an aggregate principal amount not to exceed $600,000,000 and advances made by the Borrower (ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness; provided that, notwithstanding any Restricted Subsidiary or made by any Restricted Subsidiary other provision herein to the Borrower or its Restricted Subsidiaries so long as contrary, no Person other than a Loan Party shall at any time be an obligor in respect of any such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesIndebtedness;
(di) Indebtedness constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letter letters of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice or industry norm (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 with respect to reimbursement-type obligations regarding workers compensation claims), 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;
(ed) subject to compliance with Except as otherwise limited by clauses (a), (b), (h) and (u) of this Section 11.510.1, Guarantee Obligations incurred Incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement; provided that (A) that, if the applicable Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligations, any 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeObligations;
(fe) Guarantee Obligations (i) incurred Incurred in the ordinary course of business or consistent with past practice or industry norm in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or distribution partners;
(f) (i) Indebtedness (including Financing Lease Obligations and other Indebtedness arising under mortgage financings and purchase money Indebtedness (including any industrial revenue bond, industrial development bond or similar financings)) the proceeds of which are used to finance (whether prior to or after) the acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of property (real or personal), equipment or assets, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets or otherwise Incurred in respect of Capital Expenditures; provided that such Indebtedness is Incurred concurrently with or within 270 days after the completion of the applicable acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement or the making of the applicable Capital Expenditure; provided, further, that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to this clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) otherwise constituting Investments permitted below in respect of such Indebtedness then outstanding and Indebtedness incurred pursuant to Section 10.01(g)) shall not, except as contemplated by Sections 11.5(b)(iv)the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (viii), I) the greater of (xv), x) $70,000,000 and (xviy) 25.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Internal Financial Statements most recently available on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(g) and (xviiii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness;
(g) (i) Indebtedness constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the Restatement Agreement Effective Date (and set forth on Schedule 10.1 as amended and restated by the Restatement Agreement) or Financing Lease Obligations entered into pursuant to Section 10.1(f); provided that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to this clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) below in respect of such Indebtedness then outstanding and Indebtedness incurred pursuant to Section 10.01(h)) shall not, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $70,000,000 and (y) 25.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Internal Financial Statements most recently available on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(f); and (ii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness.
(h) Restatement Agreement Effective Date Indebtedness and any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, in respect of Hedging Agreements Incurred in the ordinary course of business or assumed in connection with, the 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 Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided thatconsistent with past practice and, in the case of each of the foregoing subclauses (i) and (ii)case, the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednesstime entered into, not for speculative purposes;
(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 merger, consolidation or amalgamation 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 Funding Restatement Agreement Effective Date as the result of an Acquisition or other Investment or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Permitted AcquisitionRestricted Subsidiary; provided that:
(A) subject to Section 1.11, after giving pro forma effect thereto, no Event of Default under Section 12.1 or 12.5 has occurred and is continuing;
(B) as of the date that any such Person becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger, consolidation or amalgamation with such a Person or any of its Subsidiaries) or the date that any such assets are acquired by the Borrower or any Restricted Subsidiary and after giving pro forma effect thereto, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(j) does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(k)(i)(B)(I) and Section 10.1(s)(i) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(j) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $55,000,000 and (y) 20.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date plus (II) subject to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis, with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of either (x) not greater than 6.50:1.00 or (y) not greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,;
(BD) 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),) except to the extent permitted under Section 10.5 or Section 10.6;
(CE) (1x) the Capital Stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.11 and (2y) such Person executes a supplement to each of the Guarantee, the Security Agreement and a guarantor joinder agreement substantially in the Pledge Agreementform of Exhibit A hereto (or alternative guarantee and security arrangements in relation to the Obligations) and a counterpart signature page to the Intercompany Subordinated Notes, in each case to the extent required under Section 10.109.10, 9.11 or 9.14(b), as applicable; and
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance an Acquisition or other Investment; provided that:
(A) subject to Section 1.11, after giving pro forma effect thereto, no Event of Default under Section 12.1 or 12.5 has occurred and is continuing;
(B) as of the date of such Incurrence and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(k), does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(j)(i)(B)(I) and Section 10.1(s)(i) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(k) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $55,000,000 and (y) 20.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date plus (II) subject to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of either (x) not greater than 6.50:1.00 or (y) not greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) the terms of such Indebtedness do not provide for any scheduled repayment (including at maturity), mandatory repayment, redemption, repurchase, defeasance, acquisition, similar payment or sinking fund obligation prior to the Latest Maturity Date, other than customary prepayments, repurchases, redemptions, defeasances or similar payments of, or offers to prepay, redeem, repurchase, defease, acquire or similarly pay upon, a change of control, asset sale event or casualty, eminent domain or condemnation event or on account of the accumulation of excess cash flow and customary acceleration rights upon an event of default; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the foregoing requirements of this clause (C) shall not apply to the extent such Indebtedness is either subject to Customary Escrow Provisions or constitutes a customary bridge facility (including 364-day bridge facilities, so long as the long term Indebtedness into which any Indebtedness such customary bridge facility (other than a 364-bridge facility) is to be converted or exchanged satisfies the requirements of the type that could have been incurred under Section 11.1(g), andthis clause (C) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges;
(D) after giving effect if such Indebtedness is Incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness shall not be guaranteed in any respect by the Borrower or any other Subsidiary Guarantor except 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Periodextent permitted under Section 10.5;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(jE) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1x) the Capital Stock of the any Person acquired in such Acquisitions or other Investment (the “Acquired Person”) is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.11 and (2y) such Acquired Person executes a supplement to each of the Guarantee, the Security Agreement and a guarantor joinder agreement substantially in the Pledge Agreement form of Exhibit A hereto and delivers any other Security Documentsa counterpart signature page to the applicable Intercompany Subordinated Note (or alternative guarantee and security arrangements in relation to the Obligations), in each case, to the extent required under Section 10.10;9.10, 9.11 or 9.14(b), as applicable; and
(BF) after giving effect the terms of such Indebtedness shall be consistent with the requirements set forth in clause (a) and, if applicable, clause (e), of the proviso to the incurrence definition of any “Permitted Additional Debt”; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness, to such acquisition and to any related pro forma adjustment, the Borrower shall be in compliance on together with a pro forma basis with the Financial Performance Covenants, as such covenant are recomputed as at the last day reasonably detailed description of the most recently ended Test Period as if such incurrence material terms and acquisition had occurred on the first day of such Test Period;
(C) the maturity conditions of such Indebtedness is not earlier thanor drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and no mandatory repayment or redemption conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (other than customary change including a reasonable description of control or asset sale offers or the basis upon any event of default) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrencewhich it disagrees); and
(DG) at the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions being consummated in connection therewith and the use of the proceeds thereof, the aggregate principal amount of all Indebtedness Incurred by Non-Loan Parties pursuant to, and then outstanding under, this Section 10.1(k), when aggregated with the aggregate principal amount of (1) all other Indebtedness Incurred by Non-Loan Parties and then outstanding pursuant to Section 10.1(s) and (2) all Permitted Refinancing Indebtedness Incurred by Non-Loan Parties and then outstanding pursuant to clause (ii) of this Section 10.1(k), shall not guaranteed in any respect exceed, except as contemplated by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;definition of “Permitted Refinancing Indebtedne
Appears in 2 contracts
Sources: Credit Agreement (Baldwin Insurance Group, Inc.), Credit Agreement (Baldwin Insurance Group, Inc.)
Limitation on Indebtedness. The Borrower will notNo Guarantor may, and will may not permit any of the Restricted Subsidiaries its Pledged SPEs or Intermediate Lessees to, incur, create, incurissue, assume assume, guarantee or suffer to exist otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, whether present or future, any Indebtedness other than (i) in the following:
(a) case of the Guarantors, Indebtedness arising under the Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes Guarantee hereunder, (ii) leases and any feesobligations to lessees, underwriting discountstrustees and others under the leases, premiums trust agreements and other costs and expenses incurred in connection with the foregoing and documents related thereto, including any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower owed to any Restricted Subsidiary lessee under any such agreement or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 lease with respect to reimbursement-type obligations regarding workers compensation claims);
maintenance contributions, redelivery condition adjustment payments or any other obligation of any Guarantor, Pledged SPE or Intermediate Lessee to a lessee, in each case that is incurred in accordance with Leasing Company Practice; (eiii) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of any Guarantor, Pledged SPE or Intermediate Lessee owed to the Borrower Company 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 any of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreementits Subsidiaries; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligationsthat, 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 no such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted unless (x) such Restricted Subsidiary shall have also provided a guarantee of Indebtedness has been subordinated to the Guaranteed Obligations substantially on the terms set forth in herein or, to the Guarantee;
(f) Guarantee Obligations (i) incurred in extent such terms are not applicable, on terms reasonably acceptable to the ordinary course of business in respect of obligations of (or to) suppliersCollateral Agent, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(iy) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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)any Pledged Debt Collateral, the Borrower shall be Collateral Agent has a first priority perfected security interest in compliance on a pro forma basis after giving effect such Pledged Debt Collateral, subject to Permitted Collateral Liens, and such Pledged Debt Collateral is, or when issued, will be, evidenced by an instrument which has been delivered and indorsed to the incurrence Collateral Agent; (iv) Indebtedness required in connection with repossession of such Indebtedness with the Financial Performance Covenants, as such covenants are 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)an Aircraft or any engine related thereto; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(hv) Indebtedness outstanding on in favor of the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness issuer of a Person surety, letter of credit or Indebtedness attaching similar instrument to the assets of a Person thatbe obtained by any Guarantor, Pledged SPE or Intermediate Lessee 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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed connection with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements repossession or detention of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred an Aircraft or other enforcement action under Section 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;lease.
Appears in 2 contracts
Sources: Five Year Revolving Credit Agreement (International Lease Finance Corp), Security and Guarantee Agreement (International Lease Finance Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiary to, create, incur, assume issue, assume, guarantee or suffer otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to exist any Indebtedness other than (including Acquired Indebtedness) and the followingBorrower will not issue any shares of Disqualified Stock and will not permit any Restricted Subsidiary to issue any shares of Disqualified Stock or, in the case of any Restricted Subsidiary that is not a Borrower or a Guarantor, preferred stock. The foregoing limitations will not apply to:
(a) Indebtedness arising under the Credit Documents;
(b) Unsecured Indebtedness (including Guarantee Obligations thereunder) in respect of arising under the Senior Notes Notes, and any feesguarantee thereof, underwriting discountsin an aggregate principal amount not to exceed $500,000,000 (plus all accrued interest, premiums fees and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessexpenses);
(ci) Intercompany loans Indebtedness outstanding on the Closing Date and advances made (ii) intercompany Indebtedness outstanding on the Closing Date (other than intercompany Indebtedness owed by the Borrower a Credit Party to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesanother Credit Party);
(d) Indebtedness (including Capital Lease Obligations), Disqualified Stock and preferred stock incurred by Holdings 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 respect a Similar Business, whether through the direct purchase of assets or the Capital Stock of any bankers’ acceptancePerson owning such assets and Indebtedness arising from the conversion of the obligations of Holdings or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of Holdings or such Restricted Subsidiary, bank guaranteesin an aggregate principal amount which, letter when aggregated with the principal amount of creditall other Indebtedness, warehouse receipt Disqualified Stock and preferred stock then outstanding and incurred pursuant to this clause (d) and all Refinancing Indebtedness incurred to Refinance any other Indebtedness, Disqualified Stock and preferred stock incurred pursuant to this clause (d), does not exceed the greater of (x) $150,000,000 and (y) 35.0% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence; provided that Capitalized Lease Obligations incurred by Holdings or similar facilities entered into any Restricted Subsidiary pursuant to this clause (d) in connection with a Permitted Sale Leaseback shall not be subject to the foregoing limitation so long as the proceeds of such Permitted Sale Leaseback are used by Holdings 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 (excluding any Lien ranking junior to the Lien securing the Obligations);
(e) Indebtedness incurred by Holdings or any Restricted Subsidiary constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business (business, including letters of credit in respect of workers workers’ compensation claims, deferred compensation, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-reimbursement or indemnification type obligations regarding workers workers’ compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower performance or surety bonds, health, disability 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 notemployee benefits or property, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (casualty or Indebtedness under clause (b) 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 Guaranteeliability insurance or self-insurance;
(f) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliersIndebtedness, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 extent not funded with third party financing, arising from agreements of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Holdings or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (providing for indemnification, adjustment of purchase price, earnout 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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired andsimilar obligations, in each case, was not created incurred or assumed in anticipation thereof,
(B) connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary or any other Person for the purpose of financing such acquisition; provided that such Indebtedness is not guaranteed in any respect by reflected on the Borrower balance sheet of Holdings or any Restricted Subsidiary (other than any contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on 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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements balance sheet for purposes of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(gf), 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period);
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 2 contracts
Sources: Credit Agreement (RBC Bearings INC), Credit Agreement (RBC Bearings INC)
Limitation on Indebtedness. The Borrower will shall not, and will shall not permit any of the Restricted Subsidiaries ACS Bermuda Subsidiary to, incur, create, incurissue, assume assume, guarantee or suffer otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, whether present or future (in any such case, to exist “Incur”), Indebtedness. Notwithstanding the foregoing, the Borrower and any Indebtedness other than ACS Bermuda Subsidiary may Incur each and all of the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(di) Indebtedness in respect of the Loans or the guarantee of the Borrower in respect of the Guarantor Loans and the Class E Securities;
(ii) Indebtedness in respect of guarantees by any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into ACS Bermuda Group Member that are in the ordinary course of the aircraft operating leasing business and related to the Aircraft and within the reasonable commercial practice of a leading aircraft operating lessor;
(iii) obligations to each Seller under each Purchase Agreement and any related lease assignment and assumption agreements and obligations to Lessees and others under the documents related thereto, including in respect of workers compensation claims, health, disability any Indebtedness owed to any Lessee (or other employee benefits lessee under an Excluded Lease) and pertaining to the Aircraft or property, casualty the Excluded Aircraft under any such agreement or liability insurance the Lease or self-insurance or other Indebtedness Excluded Lease with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject maintenance contributions, redelivery condition adjustment payments or any other obligation to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt Lessee (or Indebtedness lessee under clause (b) 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 (ian Excluded Lease) incurred in the ordinary course of the aircraft operating leasing business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness reasonable commercial practice of a Person or Indebtedness attaching to the assets leading aircraft operating lessor 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 ACS Bermuda Subsidiary, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:;
(Aiv) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, obligations under any Conversion Agreement and any other documents related thereto entered into to consummate an Aircraft Conversion in each case, was not created in anticipation thereof,accordance with Section 5.02(i) hereof;
(Bv) such contributions permitted under Sections 3.11 and 3.12 of the Intercreditor Agreement or the Guarantor Intercreditor Agreement.
(vi) Indebtedness is not guaranteed in under any respect by agreements between the Borrower or any Restricted ACS Bermuda Subsidiary and any other ACS Bermuda Group Member or other ACS Group Member (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 Subsidiarieseach, an “Intercompany Loan”),
(C) (1) the Stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests mayIndebtedness shall be evidenced in writing, which may be in electronic form, and, written notification shall have been given to the extent permitted by Section 11.2, equally Facility Agent and ratably secure the Liquidity Facility Provider of the Incurrence of such Indebtedness assumed with on behalf of the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause Borrower;
(Cvii) shall not apply to any Indebtedness of the type issuer under any Eligible Liquidity Facility, provided that could have been incurred under Section 11.1(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 Covenants, as such covenants are recomputed as at the last day prior written consent of the most recently ended Test Period as if such assumption and acquisition had occurred Facility Agent is obtained prior to entering into an Eligible Liquidity Facility not in existence on the first day of such Test PeriodInitial Closing Date;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (iviii) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock required in connection with repossession of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers an Aircraft or any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence)Engine; and
(Dix) such Indebtedness is not guaranteed in any respect favor of the issuer of a surety, letter of credit or similar instrument to be obtained by the Borrower or any ACS Bermuda Subsidiary Guarantor except to in connection with the extent permitted repossession or detention of an Aircraft or other enforcement action under Section 11.5;a Lease.
Appears in 2 contracts
Sources: Intercreditor Agreement (Aircastle LTD), Intercreditor Agreement (Aircastle LTD)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, to create, incur, assume issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15 hereof and any Credit Agreement Refinancing Indebtedness;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its any Restricted Subsidiaries Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Subsidiary 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 and the Intercompany Note or otherwise subject to subordination terms acceptable substantially identical to the subordination terms set forth in Exhibit N within 60 days of the Closing Date or such later date as the Administrative AgentAgent shall reasonably agree, in each case, to the extent permitted by Requirements of Applicable Law and not giving rise to material adverse tax consequences, (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;
(di) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of workers 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 workers’ compensation claims)) and (ii) Indebtedness supported by Letters of Credit in an amount not to exceed the Stated Amount of such Letters of Credit;
(ed) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)distribution partners;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the proceeds of which are used to finance the acquisition, lease, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance or otherwise issued or incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is issued or incurred concurrently with or within 270 days after the applicable acquisition, lease, construction, lease, repair, replacement expansionreplacement, expansion or improvement of such fixed or capital assets; (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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 Covenants, as such covenants are 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 is not issued or incurred to Refinance acquire Capital Stock of any such Indebtedness;
Person and (hii) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and 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 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 Capitalized Leases, other than Capitalized Leases in effect on the Closing Date (and set forth on Schedule 10.1) 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 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 greater of (x) $10,000,000 and (y) 0.3% of Consolidated Total Assets (measured as of the date such Indebtedness is issued or incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date of incurrence);
(h) Closing Date Indebtedness and any Permitted Refinancing Indebtedness with respect thereto;
(i) Indebtedness in respect of Hedging Agreements incurred in the ordinary course of business and, at the time entered into, not for speculative purposes;
(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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary Acquisition or at the time such assets were acquired and, in each case, was not created in 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 Administrative Agent to the extent required similar Investments permitted under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent10.5; 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
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 Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) any Restricted Subsidiary to the Borrower or its any other Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) if by a Restricted Foreign Subsidiary of any Indebtedness of the Indebtedness being guaranteed under this Section 11.1(eBorrower and (b) in respect of the Permitted Subordinated Debt, unless such Guarantee is made by a Guarantor and such Guarantee is unsecured and subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of same extent as 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 of any applicable Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeSubordinated Debt;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.11, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof 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)) above, provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $75,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any in respect of Hedge Agreements;
(i) Indebtedness in respect of Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessSubordinated Debt;
(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 Funding Closing Date as the result of a Permitted Acquisition; , provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),
, (C) (1y)(A) the Stock capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and delivers any other Security Documents, security arrangements in each case, relation to the Obligations) to the extent required under Section 10.10;
Sections 9.11 or 9.12, as applicable, provided that the requirements of this subclause (By) after giving effect shall not apply to an aggregate amount at any time outstanding of up to (and including) the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness incurred under clause (k) below, when taken together, does not exceed $150,000,000 in the aggregate at any time outstanding, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the incurrence extent otherwise permitted hereunder, (x) the principal amount 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 Covenants, as such covenant are recomputed as at the last day of 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 thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon any event of defaulty) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence); anddirect and contingent obligors with respect to such Indebtedness are not changed;
(Di) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance a Permitted Acquisition, provided that (x) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (other than any Person acquired (the “acquired Person”) as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, by the Borrower, (y)(A) the Borrower pledges the capital stock of such acquired Person to the Administrative Agent to the extent required under Section 9.12 and (B) such acquired Person executes a supplement to the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and security arrangements in relation to the Obligations) to the extent required under Sections 9.11 or 9.12, as applicable, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any Subsidiary Guarantor time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness assumed or permitted to exist under clause (j) above, when taken together, does not exceed $150,000,000 in the aggregate at any time outstanding, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted under Section 11.5hereunder;
Appears in 2 contracts
Sources: Credit Agreement (Sealy Corp), Credit Agreement (Sealy Corp)
Limitation on Indebtedness. The Borrower will not, and will Lessee shall not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer permit to exist any Indebtedness, except as follows, without duplication (all such Indebtedness other than the following:being referred to hereinafter as "Permitted Indebtedness"):
(a) Indebtedness arising under permitted pursuant to the Credit Documentsterms of the Operative Documents (including the Reserve Letters of Credit);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes Lessee, so long as the obligations of the Lessee thereunder are (i) to the Pledgor and any fees, underwriting discounts, premiums and other costs and expenses incurred (ii) evidenced by an instrument or instruments subordinated to the payment of Periodic Lease Rent by provisions substantially in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessform of Exhibit D hereto;
(c) Intercompany loans and advances made surety bonds, performance bonds or similar arrangements with third-party sureties or indemnitors or similar Persons in connection with a good faith contest or otherwise permitted by the Borrower to Project Lease or any Restricted Subsidiary or made by other Operative Document, with reimbursement obligations of the Lessee not in an aggregate amount at any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements time outstanding in excess of Law and not giving rise to material adverse tax consequences$500,000;
(d) Indebtedness in respect of any bankers’ acceptanceindemnities and similar obligations, bank guaranteesif any, letter of creditarising under the Operative Documents, warehouse receipt or similar facilities entered into in to the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)extent the same constitute Indebtedness;
(e) subject Indebtedness incurred to compliance finance Modifications which are not otherwise financed with Section 11.5Additional Senior Notes and/or additional investments by the Equity Investor in accordance with the terms of the Project Lease, Guarantee Obligations incurred by provided that such Indebtedness (i) Restricted Subsidiaries in respect of Indebtedness shall be payable solely from amounts distributable to the Lessee pursuant to Section 5.9 of the Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Depositary Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee payment of the Obligations on terms at least as favorable to the Lenders as those contained Periodic Lease Rent in accordance with the subordination of such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Obligations substantially on the terms provisions set forth in the GuaranteeExhibit D;
(f) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 additional Indebtedness with the Financial Performance Covenants, as such covenants are recomputed as at the last day written prior consent 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement Owner Lessor and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Indenture Trustee.
Appears in 2 contracts
Sources: Participation Agreement (Ormat Technologies, Inc.), Participation Agreement (Ormat Technologies, Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the followingforegoing, the limitations set forth in the immediately preceding paragraph shall not apply to any of the following items:
(a) Indebtedness arising under the Credit DocumentsDocuments (including any Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(b) subject to compliance with Section 10.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued Borrower or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and the Intercompany Subordinated Note 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of construction and restoration activities and 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 claimsclaims and similar obligations);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e10.1(d) 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 Indebtedness, and (B) no guarantee the aggregate amount of Guarantee Obligations incurred by any Restricted Subsidiaries that are not Subsidiary of any Permitted Additional Debt (or Indebtedness Guarantors under this clause (bd), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Sections 10.1(k) aboveand 10.1(ii), shall not exceed the greater of (x) shall be permitted unless such Restricted Subsidiary shall have also provided $300,000,000 and (y) 17.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a guarantee Pro Forma Basis) at the time of the Obligations substantially on the terms set forth incurrence or issuance, in the Guaranteeeach case at any time outstanding;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business (including in respect of construction or restoration activities) in respect of obligations of (or to) suppliers, customers, franchisees, lessorslessors and licensees, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(ivSection 10.5 (other than Investments permitted by Section 10.5(l) by reference to Section 10.1 and Section 10.5(q), ); provided that this clause (viii), (xv), (xviii) shall not be construed to limit the requirements of Section 10.1(b) and (xviid), or (iii) contemplated by the Plan;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofto finance the purchase price, or assumed in connection withcost of design, the acquisition, construction, leaserepair, repairrestoration, replacement, expansion expansion, installation or improvement of fixed or capital assets to finance or otherwise in respect of Capital Expenditures, so long as such Indebtedness, except in the case of Environmental CapEx or Necessary CapEx, is incurred within 270 days of the acquisition, construction, lease, repair, replacement restoration, replacement, expansion, installation or improvement of such fixed or capital assets; assets or incurrence of such Capital Expenditure, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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)) above; provided, that the Borrower aggregate amount of Indebtedness incurred pursuant to this clause (iii) shall be in compliance on a pro forma basis after giving effect to not exceed the incurrence greater of such Indebtedness with the Financial Performance Covenants, as such covenants are recomputed as at the last day (x) $500,000,000 and (y) 30% of Consolidated EBITDA for the most recently ended Test Period as if such (calculated on a Pro Forma Basis) at the time of incurrence had occurred on the first day or issuance, in each case at any time outstanding and (iv) any supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension of such Test Periodany Indebtedness specified in subclause (i); and , (ii) or (iii) above; provided that, except to the extent otherwise permitted hereunder, the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus the amounts paid in respect of fees, premiums, costs, and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension plus unused commitments;
(g) Indebtedness permitted to remain outstanding under the Plan, and to the extent such Indebtedness exceeds $15,000,000, set forth on Schedule 10.1 and any Permitted Refinancing Indebtedness issued supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or incurred extension thereof; provided that except to Refinance the extent otherwise permitted hereunder, in the case of any such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension, (i) the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus any unused commitments plus the amounts paid in respect of fees, premiums, costs, and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, or extension, (ii) additional obligors do not guarantee such Indebtedness, (iii) the scheduled maturity date of such Indebtedness is not prior to the later of (A) the Latest Maturity Date and (B) the Stated Maturity of such Indebtedness as of the Conversion Date, and (iv) if the Indebtedness being refinanced, or any guarantee thereof, constituted Indebtedness subordinated in right of payment to the Obligations, then such replacement or refinancing Indebtedness, or such guarantee, respectively, shall be subordinated in right of payment to the Obligations to substantially the same extent, taken as a whole;
(h) Indebtedness outstanding on in respect of Hedging Agreements; provided that (i) other than in the Funding Date listed on Schedule 11.1 case of Commodity Hedging Agreements, such Hedging Agreements are not entered into for speculative purposes (as determined by the Borrower in good faith) and (ii) any Permitted Refinancing speculative Commodity Hedging Agreements must be entered into in the ordinary course of business (as determined by the Borrower in good faith);
(i) Indebtedness issued or incurred to Refinance such Indebtednessin respect of the RCT Reclamation Obligations;
(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 Funding Closing Date as the result of a Permitted AcquisitionAcquisition or other permitted Investment (including through merger or consolidation); provided that:
that (Ax) such Indebtedness existed at the time such Person became a Restricted Subsidiary of the Borrower or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
thereof and (By) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than by 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 , unless such Person Guarantee Obligations is pledged to the Administrative Agent to the extent required separately permitted under this Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period10.1;
(ii) any Permitted Refinancing supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension of any Indebtedness specified in subclause (i) above; provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness does not exceed the principal amount thereof outstanding immediately prior to such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus any unused commitments, plus amounts paid in respect of fees, premiums, costs and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension, (y) additional obligors do not guarantee such Indebtedness and (z) if the Indebtedness being refinanced, or any guarantee thereof, constituted Indebtedness subordinated in right of payment to Refinance the Obligations, then such replacement or refinancing Indebtedness, or such guarantee, respectively, shall be subordinated in right of payment to the Obligations to substantially the same extent, taken as a whole;
(j) (i) Indebtedness Permitted Other Debt and any supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension thereof, in each case assumed or incurred for any purpose, including to finance a Permitted Acquisition, other permitted Investments or Capital Expenditures and Indebtedness of Restricted Subsidiaries that otherwise meets the requirements of the definition of Permitted Other Debt except for the fact that it is incurred by a non-Credit Party; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as that if such incurrence and acquisition had occurred on the first day of such Test Period;
(C) the maturity of such Indebtedness is incurred or assumed by a Restricted Subsidiary that is not earlier thana Credit Party, 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary other Guarantor except as permitted under Section 10.5;
(ii) any supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension of any Indebtedness specified in subclause (i) above (which may be Permitted Other Notes or Permitted Other Loans); provided that, except to the extent otherwise expressly permitted hereunder, (x) the principal amount of any such Indebtedness does not exceed the principal amount thereof outstanding immediately prior to such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus any unused commitments plus amounts paid in respect of fees, premiums, costs and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension, (y) additional obligors do not guarantee such Indebtedness and (z) such Indebtedness complies with the requirements of the definition of “Permitted Other Loans” or “Permitted Other Notes”, as applicable, except, in the case of Indebtedness of Restricted Subsidiaries, where such Indebtedness fails to meet the requirement that it be incurred by a Credit Party;
(iii) the aggregate amount of Indebtedness incurred or assumed under this Section 11.510.1(k) (A) shall not exceed (i) the greater of (x) $275,000,000 and (y) 16% 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, plus (ii) additional amounts if, on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness and the application of proceeds thereof and, if applicable, the Permitted Acquisition, permitted Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), Disposition, or Capital Expenditure, the Consolidated Total Net Leverage Ratio is no greater than 4.50 to 1.0 (or, to the extent incurred or assumed in connection with a Permitted Acquisition, permitted Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), Disposition, or Capital Expenditure, the Consolidated Total Net Leverage Ratio (on a Pro Forma Basis for such transaction and the incurrence of such Indebtedness) is not greater than 4.50 to 1.00 or shall not be higher than the Consolidated Total Net Leverage Ratio immediately prior to such Permitted Acquisition, permitted Investment (including a prospective Investment as contemplated by the definition of “Specified Transaction”), Disposition, or Capital Expenditure and (B) by Restricted Subsidiaries that are not Subsidiary Guarantors, when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Sections 10.1(d) and (ii) shall not exceed the greater of (x) $300,000,000 and (y) 17.5% 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
(iv) if such Permitted Other Debt incurred (and for the avoidance of doubt, not “assumed”) pursuant to this clause (k) is a term loan that ranks pari passu in right of security with the Initial Term Loans as to payment and security, the Initial Terms Loans shall be subject to the adjustment (if applicable) set forth in the proviso to Section 2.14(c)(iii) as if such Permitted Other Debt were an Incremental Term Loan incurred hereunder;
(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 (including in respect of construction or restoration activities) or consistent with past practice or in respect of coal mine reclamation, 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;
(i) Indebtedness incurred in connection with any Permitted Sale Leaseback and (ii) any supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension of any Indebtedness specified in subclause (i) above; provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus any unused commitment plus the amounts paid in respect of fees, costs and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or extension and (y) additional obligors with respect to such Indebtedness are not added;
(i) additional Indebtedness and (ii) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided that the aggregate amount of Indebtedness incurred or issued pursuant to this Section 10.1(n) shall not exceed the greater of (x) $275,000,000 and (y) 16% 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 c
Appears in 2 contracts
Sources: Credit Agreement (Vistra Energy Corp), Credit Agreement (Energy Future Competitive Holdings Co LLC)
Limitation on Indebtedness. The Holdings and the Borrower will not, and will not permit any of the Restricted Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guarantee or suffer otherwise become directly or indirectly liable, contingently or otherwise with respect to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Credit Documents;
Documents and (bii) Indebtedness under the Term Loan Credit Documents (including Guarantee Obligations thereundersubject to the limitations set forth in the Intercreditor Agreement) in respect of the Senior 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 Refinance such Indebtedness;
(cb) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to Indebtedness of (i) Holdings, the Borrower or its Restricted Subsidiaries so long as any Subsidiary Guarantor owing to Holdings, the Borrower or any Subsidiary; provided that any such Indebtedness is owing shall be evidenced by an intercompany note substantially in the form of Exhibit J; (ii) any Subsidiary that is not a Subsidiary Guarantor owing to any other Subsidiary that is not a Subsidiary Guarantor and subject to subordination terms acceptable to the Administrative Agent, (iii) to the extent permitted by Requirements of Law and Section 10.5, any Subsidiary that is not giving rise a Subsidiary Guarantor owing to material adverse tax consequences;Holdings, the Borrower or any Subsidiary Guarantor.
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)) but in any event, not in respect of Hedging Agreements;
(ed) subject to compliance with Section 11.5except as provided in clauses (h), (k), and (l) below, Guarantee Obligations incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) Holdings or the Borrower in respect of Indebtedness of the Borrower or any Restricted Subsidiaries Subsidiary that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(f) (i) Indebtedness (including Attributable Indebtedness and other Indebtedness arising under Capital Capitalized Leases) incurred within 270 days of, or assumed in connection with, the proceeds of which are used to finance the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance or otherwise incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is incurred concurrently with or within 270 days after the applicable acquisition, construction, lease, repair, replacement expansionreplacement, expansion or improvement of such fixed or capital assets; (ii) Indebtedness arising under Capital Leasesimprovement, other than (A) Capital Leases in effect on the Funding 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 and its Restricted Subsidiaries shall be in compliance compliance, on a pro forma basis Pro Forma Basis after giving effect to the incurrence of such Indebtedness Indebtedness, with the Financial Performance Covenantscovenants set forth in Section 9.11 of the Term Loan Credit Agreement, as such covenants are recomputed as at the last day of the most recently ended Test Period as if the incurrence of such incurrence Indebtedness had occurred on the first day of such Test Period); Period and (iiiC) such Indebtedness is not incurred to acquire Capital Stock of any Person and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(hg) (i) Indebtedness outstanding arising under Capitalized Leases, other than Capitalized Leases in effect on the Funding Closing Date listed (and set forth on Schedule 11.1 10.1) or Capitalized Leases entered into pursuant to Section 10.1(f), and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness provided that (A) any obligations existing on the Closing Date (x) that were not included on the balance sheet of the Borrower and the Restricted Subsidiaries as Capitalized Lease Obligations and (y) that are subsequently recharacterized as Capitalized Lease Obligations due to a change in accounting treatment shall not be treated as Capitalized Lease Obligations for the purpose of this Section 10.1(g) and (B) the aggregate principal amount of Indebtedness outstanding permitted under this Section 10.1(g), when combined with the aggregate principal amount of Indebtedness outstanding under Sections 10.1(k) and 10.1(l), shall not exceed $60,000,000 at any time;
(i) Closing Date Indebtedness (other than Indebtedness permitted under Sections 9.1(a) and 9.1(j)) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(i) Indebtedness in respect of Hedging Agreements incurred in the ordinary course of business and not for speculative purposes;
(i) Indebtedness in respect of the Senior Subordinated Notes in an aggregate principal amount not to exceed $500,000,000 plus the PIK Interest Amount and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (including such PIK Interest Amount);
(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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
that (Ax) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (By) such Indebtedness is not guaranteed in any respect by Holdings, 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),
) and (C) (1z)(A) the Capital Stock of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c) 9.11 and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement, the Pledge Agreement and the Pledge Agreement, Intercreditor Agreement (or alternative guarantee and security arrangements in each case relation to the Obligations) to the extent required under Section 10.10Sections 9.10, 9.11 or 9.14(b), as applicable; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.210.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent); provided, further, ; that the requirements of this clause (Cz) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(f); and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that the aggregate principal amount of Indebtedness outstanding under this Section 10.1(k), andwhen combined with the aggregate principal amount of Indebtedness outstanding under Sections 10.1(g) and 10.1(l) shall not exceed $60,000,000 at any time;
(Di) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance a Permitted Acquisition; provided that (x) such Indebtedness is not guaranteed in any respect by Holdings, the Borrower or any other Subsidiary Guarantor except to the extent permitted under Section 10.5, and (y)(A) the Borrower or such other relevant Credit Party pledges the Capital Stock of any Person acquired in such Permitted Acquisition (the “acquired Person”) to the Collateral Agent to the extent required under Section 9.11 and (B) such acquired Person executes a supplement to the Guarantee, the Security Agreement, the Pledge Agreement and the Intercreditor Agreement (or alternative guarantee and security arrangements in relation to the Obligations) to the extent required under Sections 9.10, 9.11 or 9.14(b), as applicable (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 incurred with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent); and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that the aggregate principal amount of Indebtedness outstanding under this Section 10.1(l), when combined with the aggregate principal amount of Indebtedness outstanding under Sections 10.1(g) and 10.1(k) shall not exceed $60,000,000 at any time;
(i) unsecured Indebtedness in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligation) in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements and (ii) unsecured Indebtedness in respect of intercompany obligations of 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;
(n) Indebtedness arising from agreements of Holdings, the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case entered into in connection with the disposition of any business, assets or Capital Stock permitted hereunder, other than Guarantee Obligations incurred by any Person acquiring all or any portion of such business, assets or Capital Stock for the purpose of financing such acquisition; provided that (i) such Indebtedness is not reflected on the balance sheet of the Borrower or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial 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 assumption Borrower and the Restricted Subsidiaries in connection with such disposition;
(o) Indebtedness arising from agreements of any such Indebtedness, to such acquisition and to any related pro forma adjustmentHoldings, the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case entered into in connection with Permitted Acquisitions or other Investments permitted under Section 10.5;
(p) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations incurred in the ordinary course of business and not in connection with the borrowing of money or Hedging Agreements;
(q) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) obligations to pay insurance premiums or (ii) take or pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Agreements;
(r) (i) unsecured Indebtedness representing deferred compensation to employees, consultants or independent contractors of Holdings (or any direct or indirect parent thereof), the Borrower and the Restricted Subsidiaries incurred in the ordinary course of business; and (ii) Indebtedness consisting of obligations of Holdings (or any direct or indirect parent thereof), the Borrower or the Restricted Subsidiaries under deferred compensation to their employees, consultants or independent contractors or other similar arrangements incurred by such Persons in connection with the Transactions and Permitted Acquisitions or any other Investment expressly permitted hereunder;
(s) unsecured Indebtedness consisting of promissory notes issued by any Credit Party to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Capital Stock of Holdings (or any direct or indirect parent thereof to the extent such direct or indirect parent use the proceeds to finance the purchase or redemption (directly or indirectly) of Capital Stock of Holdings), or the Borrower permitted by Section 10.6;
(t) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business provided that such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days of its incurrence and such Indebtedness in respect of credit or purchase cards is extinguished within 60 days of its incurrence;
(u) additional Indebtedness and any refinancing, refunding, renewal or extension thereof; provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(u) shall be in not exceed $25,000,000 at any time; provided, further, that, if the most recent compliance certificate delivered pursuant to Section 9.1(d) demonstrates, on a pro forma basis with the Financial Performance CovenantsPro Forma Basis, a Consolidated Total Debt to Consolidated EBITDA Ratio of 4.00:1.00 or less as such covenants are recomputed as at of the last day of the most recently ended Test Period as if to which such assumption and acquisition had occurred on compliance certificate relates, the first day Borrower or any of such Test Periodits Restricted Subsidiaries may incur up to $25,000,000 of additional Indebtedness under this Section 10.1(u);
(i) Indebtedness incurred in connection with any Permitted Sale Leaseback and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (iw) Indebtedness incurred to finance a in respect of Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent Additional Notes to the extent required under that the Net Cash Proceeds therefrom are offered to prepay the Term Loans in accordance with Section 10.10(c4.2(a)(i) and (2) such Person executes a supplement to each of the Guarantee, Term Loan Credit Agreement;
(x) Indebtedness of Restricted Foreign Subsidiaries (and if such Restricted Foreign Subsidiary is not a Subsidiary Guarantor without recourse against the Security Agreement and the Pledge Agreement and delivers any other Security DocumentsBorrower or Subsidiary Guarantors, in each case, to the extent required case except as permitted under Section 10.10;
(B9.5) after giving effect for working capital purposes in an aggregate principal amount not to the incurrence of exceed $10,000,000 at 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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence)outstanding; and
(Dy) such Indebtedness is not guaranteed all customary premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in any respect by each of the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Sections 10.1(a) through 10.1(x) above.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Goodman Global Group, Inc.), Revolving Credit Agreement (Goodman Sales CO)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Sections 2.16 and 2.17 and any Permitted Refinancing Debt incurred to Refinance such Indebtedness);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Interim Loans, the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is 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 and substantially in the form of Exhibit L or otherwise subject to subordination terms acceptable substantially identical to the Administrative Agentsubordination terms set forth in Exhibit L, in each case, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, (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;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e10.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (q), (r) and (xviis);
(g) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the 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 Funding 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 Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the Financial Performance CovenantsCovenant, as such covenants are 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 Funding Date date hereof listed on Schedule 11.1 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, in each case after the Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge AgreementAgreement and a joinder to the Intercompany Note, in each case to the extent required under Section 10.109.11; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.210.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(g10.1(g), and
(D) after giving effect to the assumption of any such Indebtedness, to such acquisition and to any related pro forma adjustmentPro Forma Adjustment, the Borrower shall be in compliance on a pro forma basis Pro Forma Basis with the Financial Performance CovenantsCovenant, as such covenants are covenant is recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 2 contracts
Sources: Credit Agreement (Samson Resources Corp), Credit Agreement (Samson Holdings, Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the its Restricted Subsidiaries to, to create, incur, assume issue, assume, guarantee or suffer otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to exist any Indebtedness other than (including Acquired Indebtedness), except that the followingforegoing limitations will not apply to:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such IndebtednessJunior Financing;
(c) Intercompany loans Indebtedness (including any unused commitment and advances made by any Capitalized Lease Obligations) outstanding on the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note Closing Date and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequenceslisted on Schedule 10.1;
(d) (i) Indebtedness (including Capitalized Lease Obligations) to finance the purchase, lease, construction, installation, maintenance, replacement or improvement of property (real or personal) or equipment that is used or useful in respect a Similar Business, whether through the direct purchase of assets or the Capital Stock of any bankers’ acceptancePerson owning such assets and Indebtedness arising from the conversion of the obligations of the Borrower or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on‑balance sheet Indebtedness of the Borrower or such Restricted Subsidiary, bank guarantees, in an aggregate principal amount not to exceed the greater of (x) $5,000,000 and (y) 5.0% of Consolidated EBITDAR for the most recently ended Test Period (calculated on a Pro Forma Basis) at the time of incurrence and (ii) Capitalized Lease Obligations assumed in connection with Permitted Acquisitions that are not incurred in contemplation of such Acquisition;
(e) Indebtedness (including letter of credit, warehouse receipt or similar facilities entered into credit obligations consistent with past practice constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business (including business), in respect of workers workers’ compensation claims, deferred compensation, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-self insurance or other Indebtedness with respect to reimbursement-reimbursement or indemnification type obligations regarding workers workers’ compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower performance or surety bonds, health, disability 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 notemployee benefits or property, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (casualty or Indebtedness under clause (b) 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 Guaranteeliability insurance or self insurance;
(f) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each from agreements 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (providing for indemnification, adjustment of purchase price, earnout 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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired andsimilar obligations, in each case, was not created incurred or assumed in anticipation thereof,
(B) such connection with the acquisition or disposition of any business, assets or a Subsidiary or other Person, other than guarantees of Indebtedness is not guaranteed in incurred by any respect by the Borrower Person acquiring all 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 portion of such Person is pledged to business, assets or a Subsidiary for the Administrative Agent to the extent required under Section 10.10(c) and (2) purpose of financing such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Periodacquisition;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 2 contracts
Sources: Credit Agreement (Del Frisco's Restaurant Group, Inc.), Credit Agreement (Del Frisco's Restaurant Group, Inc.)
Limitation on Indebtedness. (A) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) subject to compliance with Section 10.5(g), any Restricted Subsidiary to the Borrower or its any Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ acceptancebanker’s acceptances, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) except as provided in clauses (i) and (j) below, subject to compliance with Section 11.510.5(g), Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that there shall be no Subsidiary Guarantee (A) if the by any Restricted Subsidiary that is not a Subsidiary Guarantor of any Indebtedness being guaranteed under this Section 11.1(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 Borrower and (B) no guarantee by any Restricted Subsidiary in respect of any the Senior Notes or Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted Notes, unless such Restricted Subsidiary shall have also provided Guarantee is made by a guarantee of the Obligations substantially on the terms set forth Subsidiary Guarantor and such Subsidiary Guarantee is unsecured (and subordinated in the Guaranteecase of Permitted Additional Notes that are subordinated);
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofof (A) the acquisition (by purchase, lease or assumed in connection withotherwise), the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets (including real property), and (B) any ECA Financings to finance (1) the acquisitionacquisition (by purchase, constructionlease or otherwise), lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets and (2) such ECA Financings or otherwise incurred in respect of capital expenditures, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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), ) above; provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $150,000,000 at any Permitted Refinancing time outstanding;
(g) Indebtedness issued or incurred to Refinance any such Indebtednessoutstanding on the Closing Date and listed on Schedule 10.1 hereto;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect of Hedge Agreements;
(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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
that (Av) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with Section 11, (w) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than by any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its Subsidiaries),
Subsidiary) and (C) (1y)(A) the Stock capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2B) such Person executes a supplement to each of the Guarantee, the applicable Security Agreement and the applicable Pledge Agreement, Agreement (or alternative guarantee and security arrangements in each case relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.109.11 or 9.12, as applicable; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any Indebtedness time outstanding of up to (and including) the Guarantee and Collateral Exception Amount at such time of the type that could have been incurred under Section 11.1(g), and
aggregate of (D1) after giving effect such Indebtedness and (2) all Indebtedness as to which the assumption of any such Indebtedness, proviso 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
clause (iij)(y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtednessbelow then applies;
(j) Indebtedness of the Borrower or any Restricted Subsidiary (iincluding any Permitted Additional Notes) Indebtedness incurred to finance a Permitted Acquisition; provided that:that (w) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with Section 11, (x) except in the case of Permitted Additional Notes, such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (other than any Person acquired (the “acquired Person”) as a result of such
(A) (1) the Stock Borrower pledges the capital stock of the such acquired Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2B) such acquired Person executes a supplement to each of the Guarantee, the applicable Security Agreement and the applicable Pledge Agreement (or alternative guarantee and delivers any other Security Documents, security arrangements in each case, relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.109.11 or 9.12, as applicable; provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (i)(y) above then applies;
(Bk) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, customs 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, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(l) Indebtedness incurred in connection with any Permitted Sale Leaseback (provided that the Net Cash Proceeds thereof are promptly applied to the extent required by Section 5.2);
(m) Indebtedness not otherwise permitted under this Section 10.1; provided, however, that (i) both immediately prior to and after giving effect thereto, no Default or Event of Default shall exist or result therefrom, (ii) the Borrower and its Restricted Subsidiaries shall, on a pro forma basis after giving effect to the incurrence or issuance and application of any the proceeds of such Indebtedness, to such acquisition and to any related pro forma adjustment, the Borrower shall be in compliance with Section 11 and (iii) as of the date any such Indebtedness is incurred, on a pro forma basis with after giving effect to the Financial Performance Covenants, as such covenant are recomputed as at the last day incurrence and application of the most recently ended proceeds of such Indebtedness, the Consolidated Total Debt to Consolidated EBITDA Ratio for the Test Period as if immediately preceding such incurrence and acquisition had occurred on the first day date shall be less than or equal to 6.75 to 1.0; provided, further, that no more than $400,000,000 in aggregate principal amount of such Test PeriodIndebtedness of one or more Restricted Subsidiaries that are not Guarantors incurred pursuant to this clause (m) shall be outstanding at any one time;
(Cn) Indebtedness in respect of Permitted Additional Notes to the maturity of such Indebtedness is not earlier thanextent that the Net Cash Proceeds therefrom are, 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 immediately after the Maturity Date (determined at receipt thereof, applied to the time prepayment of issuance or incurrence); andTerm Loans in accordance with Section 5.2;
(Do) such Indebtedness is not guaranteed of the Borrower or any of its Subsidiaries which may be deemed to exist in any respect by connection with agreements providing for indemnification and similar obligations in connection with acquisitions or sales of assets and/or businesses effected in accordance with the requirements of this Agreement;
(p) Indebtedness of the Borrower or any Subsidiary Guarantor except not otherwise permitted hereunder in an aggregate principal amount which, when aggregated with the principal amount or liquidation preference of all other Indebtedness then outstanding and incurred pursuant to this clause (p), does not exceed the greater of (x) $500,000,000 and (y) 3% of the Total Assets of the Borrower at the time of incurrence, at any one time outstanding;
(q) Guarantee Obligations (i) of the Borrower in favor of its Subsidiaries to permit foreign currency transactions or fund transfers in an aggregate amount not to exceed $20,000,000 at any time outstanding, (ii) of the Borrower or any of its Subsidiaries as a guarantor of the lessee under any lease pursuant to which the Borrower or any of its Subsidiaries is the lessee, other than any capital lease pursuant to which a Subsidiary that is not a Subsidiary Guarantor is the lessee, so long as such lease is otherwise permitted hereunder, (iii) of the Borrower or any of its Subsidiaries as a guarantor of any Capitalized Lease Obligation to which a Joint Venture is a party or any contract entered into by such Joint Venture in the ordinary course of business; provided that the maximum liability of the Borrower or any of its Subsidiaries in respect of any obligations as described in this clause (iii) is permitted as an Investment pursuant to the requirements of Section 10.5, and (iv) of the Borrower or any of its Subsidiaries which may be deemed to exist pursuant to the Transactions or acquisition agreements entered into in connection with Permitted Acquisitions (including any obligation to pay the purchase price therefor and any indemnification, purchase price adjustment and similar obligations to the extent otherwise permitted hereunder);
(r) obligations of the Borrower or any Subsidiary consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business, in each case to the extent constituting Indebtedness;
(s) Contribution Indebtedness, so long as (i) no Default or Event of Default shall exist at the time of or immediately after giving effect to the incurrence thereof, (ii) calculations are made by the Borrower demonstrating pro forma compliance (giving effect to the application of proceeds of such Contribution Indebtedness) with the covenants contained in Section 11 for the Test Period most recently completed, (iii) the Borrower shall furnish to the Administrative Agent a certificate from an Authorized Officer certifying to the best of his or her knowledge as to compliance with the requirements of this Section 10.1(A)(s) and containing the calculations required by the preceding clause (ii), and (iv) the aggregate amount of such Indebtedness in excess of the CI Contributions made in determining the amount of such Indebtedness pursuant to the determination of Contribution Indebtedness is subordinated in right of payment to the Obligations pursuant to subordination provisions in form and substance satisfactory to the Administrative Agent;
(t) Indebtedness of Subsidiaries that are not Subsidiary Guarantors for working capital purposes, so long as the Indebtedness under this clause (t) does not exceed $100,000,000 in the aggregate at any time outstanding;
(u) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to the Borrower or any of its Subsidiaries other than a Receivables Subsidiary in an amount not to exceed $600,000,000 at any time outstanding;
(v) letters of credit and bank guarantees denominated in currencies other than Dollars and Euros, so long as the aggregate U.S. Dollar equivalent of all such letters of credit and bank guarantees does not exceed $20,000,000 at any time;
(w) Permitted Refinancing Indebtedness in respect of any Indebtedness permitted under clauses (f), (g), (i), (j), (l), (m), (n), (s), (t) and (v) of this Section 11.5;10.1(A); and
(x) Indebtedness of Intelsat New ▇▇▇▇ Company, Ltd. and its Subsidiaries so long as the Indebtedness under this clause (x) does not exceed $250,000,000 in the aggregate at any time outstanding.
(B) The Borrower will not issue any preferred stock or other preferred equity interests other than Qualified PIK Securities; provided that the Borrower or any Restricted Subsidiary may issue Disqualified Preferred Stock to the extent that the same shall be treated as, and shall be restricted to the same extent as, Indebtedness for borrowed money for all purposes under this Agreement and is otherwise permitted to be issued hereunder.
Appears in 2 contracts
Sources: Amendment No. 3 and Joinder Agreement (Intelsat S.A.), Amendment No. 2 and Joinder Agreement (Intelsat S.A.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is 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 and substantially in the form of Exhibit M or otherwise subject to subordination terms acceptable substantially identical to the Administrative Agentsubordination terms set forth in Exhibit M, in each case, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, (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;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e10.1(d) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(d) 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 Indebtedness, (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeGuarantee and (C) the aggregate amount of Guarantee Obligations incurred by Credit Parties under this clause (d) in respect of obligations owed by Persons that are not Credit Parties and the aggregate amount of Guarantee Obligations incurred by Restricted Subsidiaries that are not Guarantors under this clause (d), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Guarantors pursuant to Section 10.1(n), shall not exceed the greater of $397,000 or five percent (5%) of Consolidated Total Assets (measured as of the date such Guarantee Obligation is incurred based upon the financial statements most recently available prior to such date);
(fe) Guarantee Obligations (i) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (p), (q) and (xviir);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the 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; provided that the aggregate amount of Indebtedness incurred under this clause (i) at any time outstanding shall not exceed the greater of $993,000 or ten percent (10%) of Consolidated Total Assets (measured as of the date such Indebtedness is incurred based upon the financial statements most recently available prior to such date), (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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 Covenants, as such covenants are 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; it is understood that any obligations existing on the Closing Date (x) that were not included on the balance sheet of the Borrower and the Restricted Subsidiaries as Capitalized Lease Obligations and (y) that are subsequently recharacterized as Capitalized Lease Obligations due to a change in accounting treatment shall not be treated as Capitalized Lease Obligations for the purpose of this Section 10.1(f);
(hg) Indebtedness outstanding on the Funding Date date hereof listed on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(h) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(i) [reserved];
(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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge AgreementAgreement and a joinder to the Intercompany Note, in each case to the extent required under Section 10.109.11; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.210.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(g10.1(f), and,
(D) after giving effect to the assumption of any such Indebtedness, to such acquisition and to any related pro forma adjustmentPro Forma Adjustment, the Borrower shall be in compliance on a pro forma basis Pro Forma Basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period, and
(E) the aggregate amount of all such Indebtedness outstanding on any date does not exceed the greater of $993,000 or ten percent (10%) of Consolidated Total Assets (measured as of the date such Indebtedness is incurred based upon the financial statements most recently available prior to such date);
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(jk) Indebtedness consisting of secured financings by a Foreign Subsidiary in which no Credit Party’s assets are used to secure such Indebtedness;
(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 or consistent with past practice;
(m) [reserved];
(i) other additional Indebtedness and (ii) any Permitted Refinancing Indebtedness issued as incurred to Refinance such Indebtedness; provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to this clause (n) shall not at any time exceed the greater of $993,000 or ten percent (10%) of Consolidated Total Assets (measured as of the date such Indebtedness is incurred based upon the financial statements most recently available prior to such date); provided, further, that the aggregate amount of Indebtedness incurred by Restricted Subsidiaries that are not Guarantors under this clause (n), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Guarantors pursuant to finance a Permitted Acquisition; provided that:
Section 10.1(d), shall not exceed the greater of $497,000 or five percent (A5%) of Consolidated Total Assets (1) the Stock measured as of the Person acquired date such Indebtedness is pledged incurred based upon the financial statements most recently available prior to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10date);
(Bo) Indebtedness in respect of Permitted Additional Debt and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness; provided that (i) the aggregate principal amount of Indebtedness outstanding at any time under this clause (o) shall not exceed $39,735,000, (ii) after giving effect to the incurrence of any such Indebtedness, to such acquisition and to any related pro forma adjustmentor issuance thereof, the Borrower shall be in compliance on a pro forma basis Pro Forma Basis with the Financial Performance Covenants, Covenants as such covenant covenants are recomputed as at of the last day of the most recently ended Test Period as if such incurrence and acquisition or issuance had occurred on the first day of such Test PeriodPeriod and (iii) the Borrowing Base shall be adjusted as set forth in Section 2.14(e);
(Cp) Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements, in each case incurred in the maturity ordinary course 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 Maturity Date (determined at the time of issuance or incurrence); andbusiness;
(Dq) 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;
(r) 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 Permitted Acquisitions, other Investments and the disposition of any business, assets or Stock permitted hereunder;
(s) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) obligations to pay insurance premiums or (ii) obligations contained in firm transportation or supply agreements, in each case arising in the ordinary course of business;
(t) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is not guaranteed done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) and the Restricted Subsidiaries incurred in any respect the ordinary course of business;
(u) Indebtedness consisting of promissory notes issued by the Borrower or any Guarantor to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) 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;
(v) 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 Permitted Acquisitions or any other Investment permitted hereunder;
(w) Indebtedness associated with bonds or surety obligations required by Requirements of Law or by Governmental Authorities in connection with the operation of Oil and Gas Properties in the ordinary course of business;
(x) Indebtedness of the Borrower or any Restricted Subsidiary Guarantor except to any joint venture (regardless of the extent permitted under Section 11.5;form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the Cash Management Services (including with respect to intercompany self-insurance arrangements) of the Borrower and its Restricted Subsidiaries; and
(y) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (x) above.
Appears in 2 contracts
Sources: Credit Agreement (KKR Financial Holdings LLC), Credit Agreement (KKR Financial Holdings LLC)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Sections 2.16 and 2.17 and any Permitted Refinancing Debt incurred to Refinance such Indebtedness);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Interim Loans, the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is 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 and substantially in the form of Exhibit L or otherwise subject to subordination terms acceptable substantially identical to the Administrative Agentsubordination terms set forth in Exhibit L, in each case, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, (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;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);; 715000788 12406500715000788 12406500
(e) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e10.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (q), (r) and (xviis);
(g) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the 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 Funding 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 Pro Forma Basis after giving effect to the incurrence of such Indebtedness with the Financial Performance CovenantsCovenant, as such covenants are 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 IndebtednessIndebtedness;[Reserved];
(h) Indebtedness outstanding on the Funding Date date hereof listed on Schedule 11.1 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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge AgreementAgreement and a joinder to the Intercompany Note, in each case to 715000788 12406500715000788 12406500 the extent required under Section 10.109.11; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.210.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(g10.1(g), and
(D) after giving effect to the assumption of any such Indebtedness, to such acquisition and to any related pro forma adjustmentPro Forma Adjustment, the Borrower shall be in compliance on a pro forma basis Pro Forma Basis with the Financial Performance CovenantsCovenant, as such covenants are covenant is recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(jk) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the such Person acquired is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documentsa joinder to the Intercompany Note, in each case, case to the extent required under Section 10.109.11;
(B) after giving effect to the incurrence of any such Indebtedness, to such acquisition and to any related pro forma adjustmentPro Forma Adjustment, the Borrower shall be in compliance on a pro forma basis Pro Forma Basis with the Financial Performance CovenantsCovenant, as such covenant are is recomputed as at the last day of 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 any respect by the Borrower or any Subsidiary Guarantor except to the extent (1) permitted under Section 11.510.5 and (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 Adjusted Financial Performance Covenant, as such covenant is recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such 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 Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) any Restricted Subsidiary to the Borrower or its any other Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) if by a Restricted Foreign Subsidiary of any Indebtedness of the Indebtedness being guaranteed under this Section 11.1(eBorrower and (b) in respect of the Permitted Subordinated Debt, unless such Guarantee is made by a Guarantor and such Guarantee is unsecured and subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of same extent as 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 of any applicable Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeSubordinated Debt;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.11, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof 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)) above, provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $25,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any in respect of Hedge Agreements;
(i) Indebtedness in respect of Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessSubordinated Debt;
(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 Funding Closing Date as the result of a Permitted Acquisition; , provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),
, (C) (1y)(A) the Stock capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and delivers any other Security Documents, security arrangements in each case, relation to the Obligations) to the extent required under Section 10.10;
Sections 9.11 or 9.12, as applicable, provided that the requirements of this subclause (By) after giving effect shall not apply to an aggregate amount at any time outstanding of up to (and including) the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness incurred under clause (k) below, when taken together, does not exceed $150,000,000 in the aggregate at any time outstanding, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the incurrence extent otherwise permitted hereunder, (x) the principal amount 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 Covenants, as such covenant are recomputed as at the last day of 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 thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon any event of defaulty) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence); anddirect and contingent obligors with respect to such Indebtedness are not changed;
(Di) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance a Permitted Acquisition, provided that (x) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (other than any Person acquired (the “acquired Person”) as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, by the Borrower, (y)(A) the Borrower pledges the capital stock of such acquired Person to the Administrative Agent to the extent required under Section 9.12 and (B) such acquired Person executes a supplement to the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and security arrangements in relation to the Obligations) to the extent required under Sections 9.11 or 9.12, as applicable, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any Subsidiary Guarantor time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness assumed or permitted to exist under clause (j) above, when taken together, does not exceed $150,000,000 in the aggregate at any time outstanding, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted under Section 11.5hereunder;
Appears in 2 contracts
Sources: Credit Agreement (Sealy Mattress CORP), Credit Agreement (Sealy Mattress CORP)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, createdirectly or indirectly, incurIncur, assume contingently or suffer otherwise, with respect to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15, and (ii) any Credit Agreement Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness[Reserved];
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(di) Indebtedness constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letter letters of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice (including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-self- insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims), 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;
(ed) subject to compliance with Except as otherwise limited by clauses (a), (b), (h) and (u) of this Section 11.510.1, Guarantee Obligations incurred Incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement; provided that (A) that, if the applicable Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligations, any 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeObligations;
(fe) Guarantee Obligations (i) incurred Incurred in the ordinary course of business in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)distribution partners;
(f) (i) Indebtedness (including Financing Lease Obligations and other Indebtedness arising under Capital Leasesmortgage financings and purchase money Indebtedness (including any industrial revenue bond, industrial development bond or similar financings)) incurred within 270 days of, or assumed in connection with, the proceeds of which are used to finance the acquisition, development, construction, lease, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of fixed or capital assets to finance or otherwise Incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is Incurred concurrently with or within 270 days after the completion of the applicable acquisition, development, construction, lease, repair, replacement expansionrestoration, replacement, maintenance, upgrade, expansion or improvement or the making of such fixed or capital assets; (ii) Indebtedness arising under the applicable Capital Leases, other than (A) Capital Leases in effect on the Funding Date Expenditure and (B) such Indebtedness is not Incurred to acquire Capital Leases entered into Stock of any Person; provided, further, that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to subclause clause (i) above (provided thatwhen aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, in except as contemplated by the case definition of each “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the foregoing subclauses Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (imeasured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(g) 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred Incurred to Refinance such Indebtedness;
(g) (i) Indebtedness of a Person or Indebtedness attaching to constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the assets of a Person that, in either case, becomes a Restricted Subsidiary Closing Date (or is a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiariesand set forth on Schedule 10.1) or Indebtedness attaching Financing Lease Obligations entered into pursuant to the assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funding Date as the result of a Permitted AcquisitionSection 10.1(f); provided that:
(A) such Indebtedness existed , at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Person became a Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $10,000,000 and (y) 20% of Consolidated EBITDA of the Borrower and its Restricted Subsidiary Subsidiaries for the Test Period most recently ended on or at prior to such date of Incurrence (measured as of the time such assets were acquired and, in each case, was not created in anticipation thereof,
(B) date such Indebtedness is not guaranteed in any respect by Incurred based upon the Borrower Section 9.1 Financials most recently delivered on or any Restricted Subsidiary prior to such date) minus (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) (1II) the Stock aggregate amount of such Person is pledged Indebtedness incurred pursuant to the Administrative Agent to the extent required under Section 10.10(c) 10.1(f); and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred Incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;.
Appears in 2 contracts
Sources: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.), Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness Documents (including Guarantee Obligations thereunderpursuant to Sections 2.16 and 2.17) in respect of the Senior 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 Refinance such Indebtedness;
(b) [Reserved];
(c) Intercompany loans Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Secured Term Loan Facilities, any Incremental TL Facility and advances made by any Incremental Equivalent Debt in respect of the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness, in each case, if secured, subject to the Intercreditor Agreement;
(d) Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its any Restricted Subsidiaries so long as Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agentnot a Guarantor, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesconsequences shall be subordinated to the Obligations pursuant to the Intercompany Note, (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;
(de) Indebtedness in respect of any bankers’ acceptanceacceptances, bank guarantees, letter letters of credit, warehouse receipt receipts or similar facilities instruments entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims); provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the incurrence thereof;
(ef) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 11.1(e) 10.1(f), guarantee Indebtedness that such Restricted Subsidiary could not otherwise itself incur under this Section 11.110.1) 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 11.1(e10.1(f) 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 of any Permitted Additional Debt (or Debt, Indebtedness under clause (bc) above) above or other Junior Debt 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;
(fg) Guarantee Obligations (i) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (j), (q), (r), (s) and (xviit);
(h) (i) Indebtedness (including Indebtedness arising under Capital Capitalized Leases) incurred prior to or within 270 365 days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) to finance the acquisition, construction, lease, repair, replacement expansion, or improvement of such fixed or capital assetsassets (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of installation and the beginning of the full productive use of such asset); (ii) Indebtedness arising under Capital Capitalized Leases, other than (A) Capital Capitalized Leases in effect on the Funding Closing Date and (B) Capital Capitalized 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 Covenants, as such covenants are 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)above; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness; provided, that the aggregate principal amount of Indebtedness permitted by subclauses (i), (ii) and (iii) of this Section 10.1(h) shall not exceed at any time outstanding the greater of $30,000,000 and 2.0% of Consolidated Total Assets; and (iv) Indebtedness (including Capitalized Leases) incurred from, or arising out of, financing the acquisition, replacement, lease or improvement of compressors (or similar equipment) in the aggregate amount not to exceed the greater of $25,000,000 and 1.6% of Consolidated Total Assets, in each case, determined at the time of incurrence (together with any Permitted Refinancing Indebtedness incurred in respect thereof) at any time outstanding;
(hi) Indebtedness outstanding on the Funding Date listed date hereof and set forth on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(ij) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(k) Indebtedness of a Person the Borrower (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness) (x) incurred in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 or (y) assumed in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 so long as, in the case of Indebtedness attaching assumed pursuant to the assets clause (y) hereof, such Indebtedness is not incurred in contemplation of a Person such Permitted Acquisition or similar Investment; provided that, after giving Pro Forma Effect to such Permitted Acquisition or similar Investment and the incurrence or assumption of such Indebtedness, the aggregate amount of such Indebtedness does not exceed (x) the greater of (A) $30,000,000 and (B) 2.0% of Consolidated Total Assets at any time outstanding plus (y) any additional amount of such Indebtedness so long as (i) if such Indebtedness is unsecured, either (X) the Consolidated Total Net Leverage Ratio determined on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness) would be lower than the Consolidated Total Net Leverage Ratio immediately prior thereto or (Y) the Borrower would be permitted to incur $1.00 of unsecured, senior subordinated or subordinated Indebtedness, subject to a maximum Consolidated Total Net Leverage Ratio of 4.50:1.00 determined on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness) and (ii) if such Indebtedness is secured by Liens on assets that constitute Collateral, either (X) the Consolidated Secured Net Leverage Ratio determined on Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness) would be lower than the Consolidated Total Net Leverage Ratio immediately prior thereto or (Y) the Borrower would be permitted to incur $1.00 of secured Indebtedness, subject to a maximum Consolidated Secured Net Leverage Ratio of 4.25:1.00 determined on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness); provided, further that (i) in either casethe case of Indebtedness incurred pursuant to clauses (x) and (y) hereof, becomes any such Indebtedness shall have a Restricted Subsidiary maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred or assumed and have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facility and (or is ii) any such Indebtedness incurred pursuant to clause (x) hereof by a Restricted Subsidiary that survives is not a merger with such Person or Credit Party shall not exceed in the aggregate at any time outstanding the greater of its Subsidiaries) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary$37,500,000 and 2.5% of Consolidated Total Assets, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed determined at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agentincurrence; provided, further, that the requirements of this clause (CSection 10.1(k) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(h), and;
(Dl) Pari Debt (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness); provided that any such Indebtedness incurred pursuant to this Section 10.1(l) shall have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is secured and have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facility and Permitted Refinancing Indebtedness with respect thereto;
(m) Indebtedness arising from Permitted Intercompany Activities to the extent constituting an Investment permitted by Section 10.5;
(n) Indebtedness of a Foreign Subsidiary that is not a Subsidiary Guarantor; provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(n) shall not at the time of incurrence thereof and immediately after giving effect thereto and the use of proceeds thereof on a Pro Forma Basis exceed the greater of (i) $45,000,000 and (ii) 3.0% of Consolidated Total Assets (measured as of the date of incurrence of such Indebtedness based upon internally available financial statements); provided, further, that no Credit Party’s assets are used to the assumption of secure any such Indebtedness and no Credit Party guarantees 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(o) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, and obligations in respect of letters of credit, bank guaranties or instruments related thereto, in each case provided in the ordinary course of business or consistent with past practice or industry practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practice;
(p) (i) other additional Indebtedness and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness, provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(p) shall not at the time of incurrence thereof and immediately after giving effect thereto and the use of proceeds thereof on a Pro Forma Basis exceed the greater of $52,500,000 and 3.5% of Consolidated Total Assets (measured as of the date of incurrence of such Indebtedness based upon the financial statements most recently available prior to such date);
(jq) Indebtedness in respect of (i) Indebtedness incurred to finance a Permitted AcquisitionAdditional Debt; provided that:
that (A) (1) in the Stock case of the Person acquired any Permitted Additional Debt that is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guaranteeunsecured Indebtedness, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) Consolidated Total Net Leverage Ratio immediately after giving effect to the incurrence or issuance thereof and the use of proceeds therefrom does not exceed 4.50:1.00 on a Pro Forma Basis (determined without netting the cash proceeds 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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;,
Appears in 2 contracts
Sources: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness Documents (including Guarantee Obligations thereunderpursuant to Sections 2.16 and 2.17) in respect of the Senior 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 Refinance such Indebtedness;
(b) [Reserved];
(c) Intercompany loans Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Secured Term Loan Facilities, any Incremental TL Facility and advances made by any Incremental Equivalent Debt in respect of the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness, in each case, if secured, subject to the Intercreditor Agreement;
(d) Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its any Restricted Subsidiaries so long as Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agentnot a Guarantor, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesconsequences shall be subordinated to the Obligations pursuant to the Intercompany Note, (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;
(de) Indebtedness in respect of any bankers’ acceptanceacceptances, bank guarantees, letter letters of credit, warehouse receipt receipts or similar facilities instruments entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims); provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the incurrence thereof;
(ef) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 11.1(e) 10.1(f), guarantee Indebtedness that such Restricted Subsidiary could not otherwise itself incur under this Section 11.110.1) 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 11.1(e10.1(f) 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 of any Permitted Additional Debt (or Debt, Indebtedness under clause (bc) above) above or other Junior Debt 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;
(fg) Guarantee Obligations (i) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (j), (q), (r), (s) and (xviit);
(h) (i) Indebtedness (including Indebtedness arising under Capital Capitalized Leases) incurred prior to or within 270 365 days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) to finance the acquisition, construction, lease, repair, replacement expansion, or improvement of such fixed or capital assetsassets (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of installation and the beginning of the full productive use of such asset); (ii) Indebtedness arising under Capital Capitalized Leases, other than (A) Capital Capitalized Leases in effect on the Funding Closing Date and (B) Capital Capitalized 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 Covenants, as such covenants are 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)above; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness; provided, that the aggregate principal amount of Indebtedness permitted by subclauses (i), (ii) and (iii) of this Section 10.1(h) shall not exceed at any time outstanding the greater of $30,000,000 and 2.0% of Consolidated Total Assets; and (iv) Indebtedness (including Capitalized Leases) incurred from, or arising out of, financing the acquisition, replacement, lease or improvement of compressors (or similar equipment) in the aggregate amount not to exceed the greater of $25,000,000 and 1.6% of Consolidated Total Assets, in each case, determined at the time of incurrence (together with any Permitted Refinancing Indebtedness incurred in respect thereof) at any time outstanding;
(hi) Indebtedness outstanding on the Funding Date listed date hereof and set forth on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(ij) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(k) Indebtedness of a Person the Borrower (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness) (x) incurred in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 or (y) assumed in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 so long as, in the case of Indebtedness attaching assumed pursuant to the assets clause (y) hereof, such Indebtedness is not incurred in contemplation of a Person such Permitted Acquisition or similar Investment; provided that, after giving Pro Forma Effect to such Permitted Acquisition or similar Investment and the incurrence or assumption of such Indebtedness, the aggregate amount of such Indebtedness does not exceed (x) the greater of (A) $30,000,000 and (B) 2.0% of Consolidated Total Assets at any time outstanding plus (y) any additional amount of such Indebtedness so long as (i) if such Indebtedness is unsecured, either (X) the Consolidated Total Net Leverage Ratio determined on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness) would be lower than the Consolidated Total Net Leverage Ratio immediately prior thereto or (Y) the Borrower would be permitted to incur $1.00 of unsecured, senior subordinated or subordinated Indebtedness, subject to a maximum Consolidated Total Net Leverage Ratio of 4.50:1.00 determined on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness) and (ii) if such Indebtedness is secured by Liens on assets that constitute Collateral, either (X) the Consolidated Secured Net Leverage Ratio determined on Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness) would be lower than the Consolidated Total Net Leverage Ratio immediately prior thereto or (Y) the Borrower would be permitted to incur $1.00 of secured Indebtedness, subject to a maximum Consolidated Secured Net Leverage Ratio of 4.25:1.00 determined on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness); provided, further that (i) in either casethe case of Indebtedness incurred pursuant to clauses (x) and (y) hereof, becomes any such Indebtedness shall have a Restricted Subsidiary maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred or assumed and have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facility (or is including at the time of (and after giving effect to) any extension of maturity of the Facility pursuant to Section 2.17(a)) and (ii) any such Indebtedness incurred pursuant to clause (x) hereof by a Restricted Subsidiary that survives is not a merger with such Person or Credit Party shall not exceed in the aggregate at any time outstanding the greater of its Subsidiaries) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary$37,500,000 and 2.5% of Consolidated Total Assets, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed determined at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agentincurrence; provided, further, that the requirements of this clause (CSection 10.1(k) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(h), and;
(Dl) Pari Debt (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness); provided that any such Indebtedness incurred pursuant to this Section 10.1(l) shall have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is secured and have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facility, in each case at the time such Indebtedness is secured and at the time of (and after giving effect to) any extension of maturity of the Facility pursuant to Section 2.17(a) and Permitted Refinancing Indebtedness with respect thereto;
(m) Indebtedness arising from Permitted Intercompany Activities to the assumption extent constituting an Investment permitted by Section 10.5;
(n) Indebtedness of a Foreign Subsidiary that is not a Subsidiary Guarantor; provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(n) shall not at the time of incurrence thereof and immediately after giving effect thereto and the use of proceeds thereof on a Pro Forma Basis exceed the greater of (i) $45,000,000 and (ii) 3.0% of Consolidated Total Assets (measured as of the date of incurrence of such Indebtedness based upon internally available financial statements); provided, further, that no Credit Party’s assets are used to secure any such Indebtedness and no Credit Party guarantees 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(o) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, and obligations in respect of letters of credit, bank guaranties or instruments related thereto, in each case provided in the ordinary course of business or consistent with past practice or industry practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practice;
(p) (i) other additional Indebtedness and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness, provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(p) shall not at the time of incurrence thereof and immediately after giving effect thereto and the use of proceeds thereof on a Pro Forma Basis exceed the greater of $52,500,000 and 3.5% of Consolidated Total Assets (measured as of the date of incurrence of such Indebtedness based upon the financial statements most recently available prior to such date);
(q) Indebtedness in respect of (i) Permitted Additional Debt; provided that (A) in the case of any Permitted Additional Debt that is unsecured Indebtedness, the Consolidated Total Net Leverage Ratio immediately after giving effect to the incurrence or issuance thereof and the use of proceeds therefrom does not exceed 4.50:1.00 on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness), (B) in the case of any Permitted Additional Debt that is secured on a junior basis with the Liens securing the Obligations, the Consolidated Secured Net Leverage Ratio immediately after giving effect to the incurrence or issuance thereof and the use of proceeds therefrom does not exceed 4.25:1.00 on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness), (C) the Borrowing Base shall be adjusted to the extent required by Section 2.14(e) and (D) such Permitted Additional Debt shall have a final maturity date equal to or later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness incurred under the Facility (including at the time of and after giving effect to any extension of maturity of the Facility pursuant to Section 2.17(a)) and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(jr) Cash Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements;
(s) 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;
(t) 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 assumed or entered into in connection with the Transactions, any Permitted Acquisitions, other Investments permitted by Section 10.5 and the Disposition of any business, assets or Equity Interests not prohibited hereunder;
(u) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) Indebtedness incurred obligations to finance a Permitted Acquisition; provided that:
pay insurance premiums or (Aii) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any obligations contained in firm transportation or supply agreements or other Security Documentstake or pay contracts, in each casecase arising in the ordinary course of business;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower or, to the extent required under Section 10.10attributable to the ownership or operation of the Borrower and its Subsidiaries any direct or indirect parent thereof and the Restricted Subsidiaries incurred in the ordinary course of business or consistent with past practice or industry practice;
(Bw) after giving effect to the incurrence Indebtedness consisting 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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect promissory notes issued by the Borrower or any Guarantor to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Equity Interests of the Borrower (or any direct or indirect parent thereof) permitted by Section 10.6;
(x) 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, Permitted Acquisitions or any other Investment permitted hereunder;
(y) Indebtedness associated with bonds or surety obligations required by Requirements of Law or by Governmental Authorities in connection with the operation of Oil and Gas Properties in the ordinary course of business;
(z) Indebtedness consisting of the undischarged balance of any Volumetric Production Payment;
(aa) Indebtedness of the Borrower or any Restricted Subsidiary Guarantor except to any joint venture (regardless of the extent permitted under Section 11.5form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the Cash Management Services (including with respect to intercompany self-insurance arrangements) of the Borrower and its Restricted Subsidiaries;
(bb) Indebtedness incurred on behalf of, or Guarantee Obligations in respect of the Indebtedness of, joint ventures (regardless of the form of legal entity) that are not Subsidiaries in principal amount, when aggregated with the outstanding principal amount of Indebtedness incurred pursuant to clause (aa), not to exceed, at the time of incurrence thereof, the greater of $45,000,000 and 3.0% of Consolidated Total Assets (measured as of the date of incurrence of such Indebtedness based on the financial statements most recently available prior to such date);
(i) Indebtedness in an aggregate principal amount not to exceed 100% of the net cash proceeds received by the Borrower on the Closing Date in excess of the Minimum Equity Amount or after the Closing Date from the issuance and sale of its Equity Interests or in connection with the contribution of cash to
Appears in 2 contracts
Sources: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit Neither any Credit Party nor any of the Restricted its Subsidiaries to, shall at any time create, incurincur or assume, assume or suffer to exist any Indebtedness other than the followingbecome or be liable (directly or indirectly) in respect of:
(a) Indebtedness arising for Borrowed Money other than: (i) the Obligations; (ii) any Permitted Purchase Money Indebtedness; (iii) (A) such Rate Management Obligations and Bank Product Obligations owing to a Lender or its Affiliates pursuant to such terms and conditions as agreed to by such Lender and a Borrower or (B) Indebtedness under Rate Management Agreements consented to by Agent (including those under the BB&T Rate Management Agreement); (iv) unsecured loans or advances from any stockholder of ISA to a Borrower (provided that prior to any such loan or advance such stockholder shall enter into a subordination agreement with Agent, such subordination agreement to be in form and substance acceptable to Agent and the Requisite Lenders in their discretion exercised in good faith); (v) Indebtedness for Borrowed Money resulting from loans to one Borrower to another Borrower constituting Investments to the extent permitted by Section 8.6(c); (vi) other unsecured Indebtedness for Borrowed Money in an aggregate amount not to exceed, as of any date, $500,000 (as to all Credit DocumentsParties); and (vii) other Indebtedness for Borrowed Money and Contingent Obligations related thereto not otherwise expressly authorized by this Section 8.11 that has been specifically approved in writing by Agent;
(b) Indebtedness (including Guarantee Obligations thereunder) under a Rate Management Agreement except as provided in respect of the Senior 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 Refinance such IndebtednessSection 8.11(a)(iv);
(c) Intercompany loans Indebtedness representing reimbursement obligations and advances made by the other liabilities of a Borrower with respect to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative AgentSurety Bonds, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter letters of credit, warehouse receipt or similar facilities entered into banker’s acceptances, drafts (other than checks in the ordinary course of business (including in respect of workers compensation claims, health, disability or other employee benefits to make payments permitted by this Agreement) or property, casualty similar documents or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by instruments issued for any Borrower’s account excluding: (i) Restricted Subsidiaries in respect Letters of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted to be incurred Credit issued under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may notAgreement, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect letters of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that credit (A) if the Indebtedness being guaranteed under this Section 11.1(e) is subordinated issued by a third-party financial institution which are cash secured up to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee stated amount thereof solely as a result of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness Section 2.3(f) and (B) no guarantee issued by any Restricted Subsidiary of any Permitted Additional Debt BB&T prior to the Closing Date and listed on Schedule 8.11, and (iii) cash deposits in connection with bids, tenders or Indebtedness under clause (b) 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) leases or as security for Surety Bonds or appeal bonds, security deposits, ▇▇▇▇▇▇▇ money and other cash deposits incurred in the ordinary course of business to the extent provided in respect Section 8.8;
(d) Indebtedness secured by a Lien (other than a Permitted Lien) on or payable out of obligations the proceeds or production from any Property of a Borrower regardless of whether such Indebtedness has been assumed by a Borrower;
(e) Indebtedness representing the balance deferred and unpaid of the purchase price of any Property or toservices except (i) suppliersPermitted Purchase Money Indebtedness, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted any such balance that constitutes an account payable to a trade creditor created, incurred, assumed or guaranteed by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed a Borrower in the ordinary course of business of a Borrower in connection withwith obtaining goods, materials or services that is not more than ninety (90) days in arrears as measured from the acquisitiondate of billing, constructionunless the trade payable is being contested in good faith, 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 Funding 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 Covenants, as such covenants are 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 such balance for any services that constitutes a liability accrual, created, incurred, assumed or incurred to Refinance any guaranteed by a Borrower in the ordinary course of business of a Borrower that is not more than ninety (90) days in arrears as measured from the date due, unless such Indebtedness;accrual is being contested in good faith; or
(hf) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued evidenced by notes, bonds, debentures, installment contracts, Capital Leases, synthetic leases, or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor similar obligations except to the extent permitted under Section 11.5;Sections 8.11(a) through 8.11(e); provided that, Refinancing Debt in respect of any of the Indebtedness permitted under Sections 8.11(a) through 8.11(f) shall be permitted.
Appears in 2 contracts
Sources: Credit Agreement (Industrial Services of America Inc /Fl), Credit Agreement (Industrial Services of America Inc /Fl)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) Indebtedness of any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to any other Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ ' acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.12 , (ii) Indebtedness arising under Capital Leases entered into in connection with Real Estate Financings and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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)) above, provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $100,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on in respect of Hedge Agreements;
(i) Indebtedness in respect of the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessSubordinated Notes;
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (or is including a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiariesis also an Acquisition Subsidiary) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary (including any Acquisition Subsidiary), in each case after the Funding Closing Date as the result of a Permitted Acquisition; , provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),, (y)
(C) (1A) the Stock Borrower pledges the capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) and 9.12, (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case Guarantee to the extent required under Section 10.10; provided that 9.11 and (C) if any such Indebtedness is secured, (1) the assets covered by such pledges and security interests may, Guarantee referred to in the extent permitted by Section 11.2, preceding subclause (B) is equally and ratably secure secured or (2) in the case of assets acquired by the Borrower or any Restricted Subsidiary (other than any Acquisition Subsidiary), the Borrower's obligations hereunder or such Indebtedness assumed with Restricted Subsidiary's Guarantee, as the Secured Parties subject to intercreditor arrangements in form case may be, are equally and substance reasonably satisfactory to the Administrative Agent; providedratably secured, further, provided that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any time outstanding of up to (and including) $75,000,000 of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness incurred under clause (k) below, when taken together, does not exceed $300,000,000 in the aggregate at any time outstanding, provided that, when calculating the outstanding amount of Indebtedness for purposes of this subclause (z), Indebtedness of the type that could have been incurred under Section 11.1(g)any Acquisition Subsidiary, and
(D) after giving effect Indebtedness attaching to the assumption assets of any such Indebtedness, Acquisition Subsidiary and Indebtedness attaching to such acquisition and to assets acquired by any related pro forma adjustment, the Borrower Acquisition Subsidiary shall be in compliance on a pro forma basis with the Financial Performance Covenantsexcluded, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness incurred specified in subclause (i) above, provided that (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to Refinance such Indebtednessrefinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(j) (i) Indebtedness of the Borrower or any Restricted Subsidiary (including any Acquisition Subsidiary) incurred to finance a Permitted Acquisition; , provided that:that (x) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (other than any Person acquired (the "acquired Person") as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, by the Borrower, (y)
(A) (1) the Stock Borrower pledges the capital stock of the such acquired Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and 9.12, (2B) such acquired Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, Guarantee to the extent required under Section 10.10;
9.11 and (C) if a guarantee by such acquired Person of any such Indebtedness is secured by assets of such acquired Person, the Guarantee referred to in the preceding subclause (B) after giving effect is equally and ratably secured, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) $75,000,000 of the incurrence aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness assumed or permitted to exist under clause (j) above, when taken together, does not exceed $300,000,000 in the aggregate at any time outstanding, provided that, when calculating the outstanding amount of Indebtedness for purposes of this subclause (z), Indebtedness of any such Indebtedness, to such acquisition and to any related pro forma adjustment, the Borrower Acquisition Subsidiary shall be excluded, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in compliance on a pro forma basis with the Financial Performance Covenantssubclause (i) above, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test Period;
provided that (Cx) the maturity principal amount of any such Indebtedness is not earlier thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and no mandatory repayment (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(l) Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed (i) $75,000,000 minus (ii) the amount equal to (x) the aggregate amount of Indebtedness incurred and outstanding at such time pursuant to clause (n) below minus (y) $100,000,000;
(i) Indebtedness incurred in connection with any Real Estate Financing and (ii) any refinancing, refunding, renewal or redemption extension of any Indebtedness specified in subclause (other than customary change i) above, provided that (x) the principal amount of control any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or asset sale offers or upon any event of defaultextension and (y) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence)direct and contingent obligors with respect to such Indebtedness are not changed; and
(Di) such additional Indebtedness, provided that the aggregate amount of Indebtedness is incurred and remaining outstanding pursuant to this clause (n) shall not guaranteed at any time exceed the sum of (x) $100,000,000 and (y) the amount equal to (A) $75,000,000 minus (B) the aggregate amount of Indebtedness then outstanding under clause (l) above, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;subclause (i) above.
Appears in 2 contracts
Sources: Credit Agreement (KCLC Acquisition Corp), Credit Agreement (Kindercare Learning Centers Inc /De)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Sections 2.16 and 2.17);
(b) Indebtedness [Reserved];
(including Guarantee Obligations thereunderc) in respect of the Senior Notes and any feesSecond Lien Credit Agreement, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(cd) Intercompany loans and advances made by Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its any Restricted Subsidiaries so long as Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agentnot a Guarantor, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesconsequences shall be subordinated to the Obligations pursuant to the Intercompany Note, (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;
(de) Indebtedness in respect of any bankers’ acceptanceacceptances, bank guarantees, letter letters of credit, warehouse receipt receipts or similar facilities instruments entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims); provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the incurrence thereof;
(ef) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 11.1(e) 10.1(f), guarantee Indebtedness that such Restricted Subsidiary could not otherwise itself incur under this Section 11.110.1) 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 11.1(e10.1(f) 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 of any Permitted Additional Debt (or Debt, Indebtedness under clause clauses (bc), (i), (k) aboveor (q) of this Section 10.1 or other Junior Debt 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;
(fg) Guarantee Obligations (i) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (j), (q), (r), (s) and (xviit);
(h) (i) Indebtedness (including Indebtedness arising under Capital Capitalized Leases) incurred prior to or within 270 365 days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) to finance the acquisition, construction, lease, repair, replacement expansion, or improvement of such fixed or capital assetsassets (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of installation and the beginning of the full productive use of such asset); (ii) Indebtedness arising under Capital Capitalized Leases, other than (A) Capital Capitalized Leases in effect on the Funding Closing Date and (B) Capital Capitalized 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 Covenants, as such covenants are 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)above; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness; provided, that the aggregate principal amount of Indebtedness permitted by subclauses (i), (ii) and (iii) of this Section 10.1(h) shall not exceed at any time outstanding the greater of $65,000,000 and 3.5% of Consolidated Total Assets;
(hi) Indebtedness outstanding on the Funding Date listed date hereof and set forth on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(ij) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(k) 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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(B) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness) (x) incurred in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 or (y) assumed in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 so long as, in the case of Indebtedness assumed pursuant to clause (y) hereof, such Indebtedness is not incurred in contemplation of such Permitted Acquisition or similar Investment; provided that, (A) after giving Pro Forma Effect to such Permitted Acquisition or similar Investment and the incurrence or assumption of such Indebtedness, the Borrower shall be in compliance with the Financial Performance Covenants on a Pro Forma Basis and (B) in the case of any such secured Indebtedness assumed pursuant to clause (y) hereof, the holders of such Indebtedness have no recourse to property other than any such Person the property so acquired and the property so acquired shall not constitute Borrowing Base Properties; provided, further that so becomes a Restricted Subsidiary (i) in the case of Indebtedness incurred or is the survivor of a merger with such Person or any of its Subsidiaries),
assumed pursuant to clauses (C) (1) the Stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(cx) and (2y) hereof, any such Person executes Indebtedness shall have a supplement maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred or assumed and have a Weighted Average Life to each Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative AgentFacility; provided, further, that the requirements of this clause (CSection 10.1(k) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(h);
(l) Indebtedness in respect of Minimum Volume Commitments (including obligations contained in firm transportation or supply agreements or other take or pay contracts), andin each case arising in the ordinary course of business in an amount not to exceed 70% of projected production on a quarterly basis for each period set forth in the most recently delivered Reserve Report;
(Dm) Indebtedness arising from Permitted Intercompany Activities to the extent constituting an Investment permitted by Section 10.5;
(n) Indebtedness of a Subsidiary that is not a Subsidiary Guarantor; provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(n) shall not at the time of incurrence thereof and immediately after giving effect thereto and the use of proceeds thereof on a Pro Forma Basis exceed the greater of (i) $55,000,000 and (ii) 3.0% of Consolidated Total Assets (measured as of the date of incurrence of such Indebtedness based upon internally available financial statements); provided, further, that no Credit Party’s assets are used to the assumption of secure any such Indebtedness and no Credit Party guarantees such Indebtedness;
(o) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, and obligations in respect of letters of credit, bank guaranties or instruments related thereto, in each case provided in the ordinary course of business or consistent with past practice or industry practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practice;
(p) (i) other additional Indebtedness, provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(p) shall not at the time of incurrence thereof and immediately after giving effect thereto and the use of proceeds thereof on a Pro Forma Basis exceed the greater of $65,000,000 and 3.5% of Consolidated Total Assets (measured as of the date of incurrence of such Indebtedness based upon the financial statements most recently available prior to such acquisition date) and to any related pro forma adjustment, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(jq) Indebtedness in respect of (i) Indebtedness incurred to finance a unsecured Permitted AcquisitionAdditional Debt; provided that:
that (Ax) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) immediately after giving effect to the incurrence or issuance thereof and the use of any such Indebtednessproceeds therefrom, to such acquisition and to any related pro forma adjustment, (A) the Borrower shall be in compliance on a pro forma basis with the Financial Performance CovenantsCovenants on a Pro Forma Basis, as such covenant are recomputed as at the last day (B) no Event of Default shall have occurred and be continuing and (C) no Borrowing Base Deficiency shall result therefrom (after giving effect to any substantially contemporaneous application of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day proceeds of such Test PeriodIndebtedness to cure any such Borrowing Base Deficiency), and (y) the Borrowing Base shall be adjusted to the extent required by Section 2.14(e), and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(Cr) the maturity Cash Management Obligations, Cash Management Services and other Indebtedness in respect of such Indebtedness is not earlier thannetting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections 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 Maturity Date (determined at the time of issuance or incurrence); andsimilar arrangements;
(Ds) 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;
(t) Indebtedness is 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 assumed or entered into in connection with the Transactions, any Permitted Acquisitions, other Investments permitted by Section 10.5 and the Disposition of any business, assets or Equity Interests not guaranteed prohibited hereunder;
(u) Indebtedness of the Borrower or any Restricted Subsidiary consisting of obligations to pay insurance premiums;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower or, to the extent attributable to the ownership or operation of the Borrower and its Subsidiaries any Parent Entity and the Restricted Subsidiaries incurred in any respect the ordinary course of business or consistent with past practice or industry practice;
(w) Indebtedness consisting of promissory notes issued by the Borrower or any Subsidiary Guarantor except to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Equity Interests of the Borrower (or any Parent Entity) permitted by Section 10.6;
(x) 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, Permitted Acquisitions or any other Investment permitted hereunder;
(y) Indebtedness associated with bonds or surety obligations required by Requirements of Law or by Governmental Authorities in connection with the operation of Oil and Gas Properties in the ordinary course of business;
(z) [Reserved];
(aa) [Reserved];
(bb) Indebtedness incurred on behalf of, or Guarantee Obligations in respect of the Indebtedness of, joint ventures (regardless of the form of legal entity) that are not Subsidiaries in principal amount, when aggregated with the outstanding principal amount of Indebtedness incurred pursuant to clause (aa), not to exceed, at the time of incurrence thereof, the greater of $45,000,000 and 2.5% of Consolidated Total Assets (measured as of the date of incurrence of such Indebtedness based on the financial statements most recently available prior to such date);
(i) Indebtedness in an aggregate principal amount not to exceed 100% of the net cash proceeds received by the Borrower after the Closing Date from the issuance and sale of its Equity Interests or in connection with the contribution of cash to the extent capital of the Borrower (other than Disqualified Stock, Cure Amounts and amounts which serve to increase the Applicable Equity Amount); provided that such Indebtedness is incurred within 180 days after such contribution to the Borrower is made; provided further that such net cash proceeds shall not increase the Applicable Equity Amount and (ii) any Permitted Refinancing Indebtedness in respect of any such Indebtedness;
(dd) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit; and
(ee) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (dd) above. For purposes of determining compliance with Section 10.1, in the event that an item of Indebtedness (or any portion thereof) at any time, whether at the time of incurrence or issuance or upon the application of all or a portion of the proceeds thereof or subsequently, meets the criteria of more than one of the categories of permitted under Indebtedness described in Section 11.5;10.1(a) through (ee) above, the Borrower, in its sole discretion, will classify and may subsequently reclassify such item of Indebtedness (or any portion thereof) in any one or more of the types of Indebtedness described in Section 10.1(a) through (ee) and will only be required to include the amount and type of such Indebtedness in such of the above clauses as determined by the Borrower at such time. The Borrower will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in clauses (a) through (ee) of Section 10.1 above. The accrual of interest or dividends, the 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 of the same class, accretion or amortization of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies, will, in each case, not be deemed to be an incurrence of Indebtedness for purposes of this Section 10.1. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness or Disqualified Stock, as applicable, 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. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Borrower dated such date prepared in accordance with GAAP.
Appears in 2 contracts
Sources: Credit Agreement (Vine Energy Inc.), Credit Agreement (Vine Energy Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Sections 2.16 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness);
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries so long as any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Guarantor shall be evidenced by an intercompany note and substantially in the form of Exhibit I or otherwise subject to subordination terms acceptable substantially identical to the Administrative Agentsubordination terms set forth in Exhibit I, in each case, to the extent permitted by Requirements of Law and not giving rise to material adverse tax Tax consequences, (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;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e10.1(d) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(d) 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 of any Permitted Additional Debt (or Indebtedness under clause (b) above) Permitted Junior Lien Debt 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred prior to or within 270 days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) 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 Funding Closing Date and (B) Capital Leases entered into pursuant to subclause (i) above (above; provided that, in the case of each of the foregoing subclauses (i) and (ii), the aggregate principal amount of such Indebtedness shall not exceed, at the time of incurrence thereof, the greater of (x) $4,000,000 and (y) 7.5% of the then effective Borrowing Base; provided further that, in the case of Indebtedness incurred in reliance on the foregoing subclause (y), the Borrower shall be in compliance on a pro forma basis Pro Forma Compliance immediately after giving effect to the incurrence of such Indebtedness with (and the Financial Performance Covenants, as such covenants are recomputed as at the last day use of the most recently ended Test Period as if such incurrence had occurred on the first day of such Test Periodproceeds thereof); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(hf) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness in respect of a Person or Indebtedness attaching Hedge Agreements, subject to the assets of a Person that, limitations set forth 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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Limitation on Indebtedness. (a) The Borrower and the Parent Guarantors will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness arising under the Credit Documents;
(bii) Indebtedness of (including Guarantee Obligations thereunderx) in respect the Borrower or any of the Senior Notes and Parent Guarantors to the Borrower, any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with of the foregoing and Parent Guarantors or any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by Subsidiary of the Borrower (including, without limitation, the Permitted Intercompany Indebtedness) and (y) subject to any Restricted Subsidiary or made by compliance with Section 10.5(g), any Restricted Subsidiary to the Borrower or its any of the Parent Guarantors or any other Restricted Subsidiaries so long as Subsidiary of the Borrower; provided that (A) all such Indebtedness is evidenced by owing to a Credit Party shall be subject to a perfected, First Priority Lien pursuant to the Pledge Agreement, and (B) all such Indebtedness shall be unsecured and, if constituting an obligation of a Credit Party, subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of any applicable promissory notes or an intercompany note subordination agreement on terms and subject to subordination terms acceptable conditions no less favorable to the Lenders than the terms and conditions set forth in the Loan and Reimbursement Agreement (as in effect on the date hereof) or otherwise in a manner reasonably satisfactory to Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(diii) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(eiv) except as provided in clauses (x), (xi) and (xiii) below, subject to compliance with Section 11.510.5(g), Guarantee Obligations incurred by (ix) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement Agreement, (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (iiy) the Borrower or any of the Parent Guarantors in respect of Indebtedness of the Borrower or the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided Agreement and (z) any Foreign Subsidiary in respect of Indebtedness of any other Foreign Subsidiary that (A) if the Indebtedness being guaranteed is permitted to be incurred under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeAgreement;
(fv) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(ivi) (w) Indebtedness of the Borrower or the Restricted Subsidiaries (including Indebtedness arising under Capital LeasesLeases but excluding Indebtedness incurred in connection with Permitted Acquisitions) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets subject to pro forma compliance with Section 10.9, (iix) Indebtedness of the Borrower or the Restricted Subsidiaries arising under Capital Leases entered into in connection with Permitted Sale Leasebacks, (y) Indebtedness of the Borrower or the Restricted Subsidiaries arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each of the foregoing subclauses (iw) and (ii)x) above; provided, that the Borrower aggregate amount of Indebtedness incurred pursuant to this subclause (y) shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenantsnot exceed $40,000,000 at any time outstanding, as such covenants are 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 (iiiz) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(ivii) (A) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and (B) any Permitted Refinancing Indebtedness incurred to Refinance (in whole or in part) such Indebtedness;
(viii) Indebtedness in respect of Hedge Agreements;
(A) Indebtedness under the Senior Unsecured Notes, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness and (B) Indebtedness under the Senior Subordinated Notes, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(x) (A) 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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
that (Aw) before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (x) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (By) such Indebtedness is not guaranteed in any respect by the Borrower Borrower, any Parent Guarantor or any Restricted Subsidiary (other than by any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),, (z)
(C) (1) the Capital Stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2) such Person executes a supplement to each of the Guarantee, the Security Guarantee Agreement and the Pledge Agreement, applicable Security Documents (or alternative guarantee and security arrangements in each case relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 CovenantsSections 9.11 or 9.12, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption applicable, and acquisition had occurred on the first day of such Test Period;
(iiB) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(jxi) (iA) Indebtedness of the Borrower or any Restricted Subsidiary issued or incurred to finance a Permitted Acquisition; provided that:
that (A) (1u) the Stock Total Leverage Ratio on a Pro Forma Basis as of the Person acquired is pledged date of such Permitted Acquisition (but excluding any cash or cash equivalents constituting proceeds of such Indebtedness which may otherwise reduce the amount of Consolidated Net Debt for such purpose), shall be less than 6.50 to 1.00, as certified by a certificate from the Administrative Agent to the extent required under Section 10.10(cChief Financial Officer or Treasurer (or other equivalent officer) and (2) such Person executes a supplement to each of the GuaranteeBorrower demonstrating such compliance in reasonable detail, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(Bv) 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 compliance, on a pro forma basis Pro Forma Basis, with the Financial Performance CovenantsCovenant, as such covenant are is recomputed as at the last day of the most recently ended recent Test Period for which Section 9.1 Financials have been delivered, as if such incurrence and acquisition had occurred on the first day of such Test Period;
, as certified by a certificate from the Chief Financial Officer or Treasurer (Cor other equivalent officer) of the maturity of Borrower demonstrating such Indebtedness is not earlier thancompliance in reasonable detail, 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 Maturity Date (determined at the time of issuance or incurrence); and
(Dw) such Indebtedness is not guaranteed in any respect by any Parent Guarantor or any Restricted Subsidiary unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor substantially concurrently with the incurrence of such Indebtedness or guarantee), (x)(1) the Parent Guarantor, the Borrower or such other relevant Credit Party pledges the Capital Stock of any Subsidiary Guarantor except Person acquired (the “acquired Person”) to the Administrative Agent to the extent permitted required under Section 11.5;9.12 and
Appears in 1 contract
Limitation on Indebtedness. (A) The US Borrower and the UK Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect the US Borrower to any Subsidiary of the Senior Notes US Borrower and (ii) any fees, underwriting discounts, premiums and Subsidiary to the US Borrower or any other costs and expenses incurred in connection with Restricted Subsidiary of the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessUS Borrower;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ ' acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the US 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the US Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) if by a Restricted Foreign Subsidiary of any Indebtedness of the Indebtedness being guaranteed under this Section 11.1(eUS Borrower and (b) in respect of the Permitted Subordinated Debt, unless such Guarantee is made by a Guarantor (other than Holdings) and such Guarantee is unsecured and subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of same extent as 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 of any applicable Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeSubordinated Debt;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.11, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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)) above, provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $25,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the Closing Date and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any in respect of Hedge Agreements;
(i) Indebtedness in respect of Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessSubordinated Debt;
(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 US Borrower or any Restricted Subsidiary, in each case after the Funding Closing Date as the result of a Permitted Acquisition; , provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the US Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),
, (C) (1y)(A) the Stock capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement Agreement, the applicable Foreign Guarantee and/or the applicable Foreign Security Documents and the Pledge Agreement, Agreement (or alternative guarantee and security arrangements in each case relation to the Obligations) to the extent required under Section 10.10; Sections 9.11 or 9.12, as applicable, provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any Indebtedness time outstanding of up to (and including) the Guarantee and Collateral Exception Amount at such time of the type that could have been aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness incurred under Section 11.1(g)clause (k) below, and
(D) after giving effect to when taken together, does not exceed $150,000,000 in the assumption of aggregate at any such Indebtednesstime outstanding, 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness incurred specified in subclause (i) above, provided that, except to Refinance the extent otherwise permitted hereunder, (x) the principal amount of any such IndebtednessIndebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(j) (i) Indebtedness of the US Borrower or any Restricted Subsidiary incurred to finance a Permitted Acquisition; , provided that:
that (Ax) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (1other than any Person acquired (the "acquired Person") as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, by the US Borrower, (y)(A) the Stock US Borrower pledges the capital stock of the such acquired Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2B) such acquired Person executes a supplement to each of the Guarantee, the Security Agreement Agreement, the applicable Foreign Guarantee and/or the applicable Foreign Security Documents and the Pledge Agreement (or alternative guarantee and delivers any other Security Documents, security arrangements in each case, relation to the Obligations) to the extent required under Sections 9.11 or 9.12, as applicable, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness assumed or permitted to exist under clause (j) above, when taken together, does not exceed $150,000,000 in the aggregate at any time outstanding, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted hereunder;
(l) Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed $50,000,000 minus (ii) the amount, if any, by which the aggregate amount of Indebtedness incurred and outstanding at such time pursuant to clause (n) below exceeds $100,000,000;
(i) Indebtedness incurred in connection with any Permitted Sale Leaseback and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(i) additional Indebtedness, provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (n) shall not at any time exceed the sum of (x) $100,000,000 and (y) the amount, if any, by which $50,000,000 exceeds the aggregate amount of Indebtedness then outstanding under clause (l) above, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; and
(o) Indebtedness in respect of Permitted Additional Subordinated Notes to the extent that the Net Cash Proceeds therefrom are, immediately after the receipt thereof, applied to the prepayment of Term Loans in accordance with Section 10.10;5.2.
(B) after giving effect Holdings will not create, incur, assume or suffer to exist any Indebtedness except (a) Indebtedness created under the Loan Documents, (b) the New Senior Notes, (c) the guarantee obligations of Holdings of the Subordinated Notes under the Subordinated Note Indenture (provided that Holdings shall not guarantee the Subordinated Notes unless (i) Holdings also has guaranteed the Obligations pursuant to the incurrence Guarantee, (ii) such guarantee of any such Indebtedness, the Subordinated Notes is unsecured and subordinated 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 Covenants, as such covenant are recomputed as at the last day guarantee of the most recently ended Test Period as if Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Notes and (iii) such incurrence guarantee of the Subordinated Notes provides for the release and acquisition had occurred on the first day termination thereof, without action by any party, upon any release and termination of such Test Period;guarantee of the Obligations) and (d) PIK Refinancing Indebtedness.
(C) PIK Holdco will not create, incur, assume or suffer to exist any Indebtedness except (a) the maturity Permitted PIK Debt, (b) Permitted Additional PIK Notes to the extent that (i) the Net Cash Proceeds therefrom are, immediately after the receipt thereof, contributed by PIK Holdco to Holdings in cash as common equity and used by Holdings to make a PIK Proceeds Equity Contribution and (ii) the Net Cash Proceeds of such Indebtedness is PIK Proceeds Equity Contribution are, immediately after the receipt thereof, applied by the US Borrower to prepay Term Loans in accordance with Section 5.2; provided that the provisions of clauses (i) and (ii) shall not earlier thanapply to any issuance by PIK Holdco of PIK Refinancing Indebtedness, and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon any event of defaultc) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence); andPIK Refinancing Indebtedness.
(D) such Indebtedness is Parent will not guaranteed in create, incur, assume or suffer to exist any respect by Indebtedness.
(E) None of the Parent Companies, Holdings or the US Borrower or will, nor will they permit any Subsidiary Guarantor except to the extent permitted under Section 11.5;to, issue any preferred stock or other preferred equity interests, other than Qualified Preferred Stock and PIK Refinancing Preferred Stock.
Appears in 1 contract
Limitation on Indebtedness. The U.S. Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) (x) Indebtedness arising under the Credit DocumentsDocuments and (y) Indebtedness under the Cash Flow Term Facility in an aggregate principal amount not to exceed (i) the sum $2,750,300,000 and €130,000,000 at any time outstanding under the Cash Flow Term Facility plus (ii) the maximum amount of additional Indebtedness that could be incurred from time to time in accordance with the terms of Section 2.14 of the Cash Flow Term Credit Agreement as in effect on the Second Restatement Effective Date;
(b) subject to compliance with Section 9.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes U.S. Parent Borrower or any Restricted Subsidiary owed to the U.S. Parent Borrower or any Restricted Subsidiary; provided that, in each case, all such Indebtedness of (i) any U.S. Borrower owed to any Person that is not a U.S. Borrower shall be subordinated to the Obligations on customary terms and (ii) any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with Canadian Credit Party to any Person that is not a Credit Party shall be subordinated to the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance Obligations of such IndebtednessCredit Party on customary terms;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ed) subject to compliance with Section 11.59.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the U.S. Parent Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement (except provided that a Restricted Subsidiary that is not a Credit Party may notif the Indebtedness guaranteed constitutes Subordinated Indebtedness, by virtue of this Section 11.1(e) guarantee then such Guarantee Obligations shall be subordinated to the applicable Obligations to at least the same extent as the Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1so guaranteed) and (ii) the U.S. Parent Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreement; Agreement (provided that there shall be no guarantee pursuant to this clause (Ad) if the Indebtedness being guaranteed under this Section 11.1(e) by a Restricted Subsidiary that is subordinated to not a U.S. Borrower (and that does not guarantee 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 of any Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted unless such Restricted Subsidiary shall have also provided of a guarantee of the Obligations substantially on the terms set forth in the GuaranteeU.S. Borrower);
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xviiSection 9.5(g);
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; , provided that the aggregate amount of Indebtedness incurred pursuant to this subclause (f)(i) at any time outstanding (when aggregated with all Indebtedness outstanding under subclause (f)(ii) below) shall not exceed $30,000,000, and (ii) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness arising under Capital Leases, other than (A) Capital Leases specified in effect on the Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above above, provided that the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to any fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extensions;
(g) Existing Indebtedness and any modification, replacement, refinancing, refunding, renewal or extension thereof; provided thatthat (x) the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the amount of fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension, (y) the case of each of direct and contingent obligors with respect to such Indebtedness are not changed (except in connection with the foregoing subclauses (iPost-Closing Subsidiary Transfer) and (ii), the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence z) no portion of such Indebtedness with matures prior to the Financial Performance CovenantsFinal Maturity Date (unless the Existing Indebtedness being modified, as such covenants are recomputed as at replaced, refunded, renewed or extended originally matured prior to the last day of the most recently ended Test Period as if such incurrence had occurred on the first day of such Test PeriodFinal Maturity Date); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness in respect of Hedge Agreements not entered into for speculative purposes;
(i) Indebtedness in respect of (x) the Subordinated Notes in an aggregate principal amount not to exceed $1,000,000,000 and (y) any modification, replacement, refinancing, refunding, renewal or extension of Indebtedness referred to in the foregoing subclause (x); provided that (i) the principal amount thereof does not exceed the principal amount thereof outstanding on immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by the Funding Date listed on Schedule 11.1 amount of fees and any Permitted Refinancing expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension (ii) such Indebtedness issued or incurred is subordinated to Refinance the Obligations to at least the same extent as the Subordinated Notes and (iii) the other terms of such IndebtednessIndebtedness are not less favorable, taken as a whole, to the Lenders than the terms of the Subordinated Notes;
(i) Indebtedness of a Person or Indebtedness attaching to the assets (other than ABL Priority Collateral of a Credit Party) of a Person that, in either case, becomes a Restricted Subsidiary of the U.S. Parent Borrower (or is a Restricted Subsidiary that survives a merger with such Person or any of its SubsidiariesPerson) or Indebtedness attaching to the assets that are acquired by the U.S. Parent Borrower or any Restricted Subsidiary, in each case after the Funding Closing Date as the result of a Permitted Acquisitionan acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Sources: Abl Credit Agreement (Univar Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, createdirectly or indirectly, incurIncur, assume contingently or suffer to exist otherwise, any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15, and (ii) any Credit Agreement Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(bi) Indebtedness (including Guarantee Obligations thereunder) in respect of the Existing Notes in an aggregate principal amount not to exceed $250,000,000 and Indebtedness in respect of the Senior Notes in an aggregate principal amount, not to exceed $1,100,000,000 and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and (ii) any Permitted Refinancing Indebtedness issued or incurred Incurred to Refinance (in whole or in part) such Indebtedness; provided that, notwithstanding any other provision herein to the contrary, no Person other than a Credit Party shall at any time be an obligor in respect of any such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(di) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims) 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;
(ed) subject to compliance with Section 11.5Except as otherwise provided in clauses (a), (b), (h) and (w), Guarantee Obligations incurred Incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement; provided that (A) that, if the applicable Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligations, any 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeObligations;
(fe) Guarantee Obligations (i) incurred Incurred in the ordinary course of business in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)distribution partners;
(f) (i) Indebtedness (including Capitalized Lease Obligations and other Indebtedness arising under Capital Capitalized Leases) incurred within 270 days of, or assumed in connection with, the proceeds of which are used to finance the acquisition, construction, leaserepair, repairrestoration, replacement, expansion or improvement of fixed or capital assets to finance or otherwise Incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is Incurred concurrently with or within 270 days after the applicable acquisition, Table of Contents construction, lease, repair, replacement expansionrestoration, replacement, expansion or improvement or the making of such fixed or capital assets; (ii) Indebtedness arising under the applicable Capital Leases, other than (A) Capital Leases in effect on the Funding Date Expenditure and (B) such Indebtedness is not Incurred to acquire Capital Leases entered into pursuant to subclause (i) above (provided that, in the case Stock of each of the foregoing subclauses (i) any Person 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 Covenants, as such covenants are 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 Incurred to Refinance such Indebtedness; provided 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 Section 10.1(f) shall not exceed the greater of (x) $75,000,000 and (y) 1.50% of Consolidated Total Assets (measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date of Incurrence);
(g) [reserved];
(h) Closing Date Indebtedness and any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(hi) Indebtedness outstanding on in respect of Hedging Agreements Incurred in the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessordinary course of business and, at the time entered into, not for speculative purposes;
(j) [reserved];
(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 Funding Closing Date as the result of a Permitted AcquisitionAcquisition or similar Investment permitted under Section 10.5; provided that:
(A) before and after giving effect thereto, no Default or Event of Default has occurred and is continuing;
(B) after giving effect to the Incurrence of any such Indebtedness, to such acquisition, any Specified Transaction to be consummated in connection therewith and to any related Pro Forma Adjustment, the Borrower and the Restricted Subsidiaries shall be in compliance on a Pro Forma Basis with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, acquisition, Specified Transaction and Pro Forma Adjustment had occurred on the first day of such Test Period, of either (x) not more than 5.50:1.00; or (y) not more than the Consolidated Total Debt to Consolidated EBITDA Ratio of the Borrower and the Restricted Subsidiaries immediately prior to giving effect to all such Incurrences and such other transactions;
(C) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,;
(BD) 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),
) except to the extent permitted under Section 10.5; Table of Contents (CE) (1x) the Capital Stock of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c) 9.11 and (2y) such Person executes a supplement to each of the Guarantee, the Security Agreement and the applicable Pledge AgreementAgreement (or alternative guarantee and security arrangements in relation to the Obligations) and a joinder to the Intercompany Note, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may9.10, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(g9.11 or 9.14(b), 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Periodapplicable;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Sources: Credit Agreement (Amsurg Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the foregoing, the limitations set forth in the immediately preceding sentence shall not apply to any of the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including any Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of under the Senior Notes ABL Credit Documents 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 thereof, in an aggregate principal amount not to Refinance exceed the sum of (i) $300,000,000 plus (ii) the principal amount of “Incremental Facilities” (as defined in the ABL Credit Agreement) measured at the time of incurrence pursuant to the ABL Credit Agreement as in effect on the Closing Date plus (iii) solely in the case of any such Refinancing Indebtedness, the Refinancing Increased Amount with respect thereto;
(c) Intercompany loans and advances made by [reserved];
(d) subject to compliance with Section 10.5, Indebtedness of the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(de) subject to compliance with Section 10.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 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;
(f) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claimsclaims and similar obligations);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Limitation on Indebtedness. The Borrower will Without the consent of the Requisite Purchasers, the Company shall not, and will shall not permit any of the Restricted Subsidiaries Subsidiary to, directly or indirectly, create, incur, incur or assume or suffer to exist any Indebtedness other than the followingexcept:
(a) Indebtedness arising of the Company and any Guarantor or Note Party under the Credit DocumentsNote Documents and any Permitted Refinancing thereof that satisfies the Junior Debt Conditions;
(b) Indebtedness outstanding on the Closing Date (including Guarantee Obligations thereunderother than revolving credit Indebtedness underand listed on Schedule 7.03(b) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred Credit Agreement (as in connection with effect on the foregoing Second Amendment Effective Date) and any Permitted Refinancing thereof that satisfies the Junior Debt Conditions; provided that all such Indebtedness issued or incurred of any Note Party owed to Refinance such Indebtednessany Restricted Subsidiary that is not a Note Party shall be unsecured and subordinated to the Note Obligations pursuant to terms substantially consistent with Exhibit G hereto;
(c) Intercompany loans and advances made Guarantees by the Borrower to Company and any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement (except that a Company and any Restricted Subsidiary that is not a Credit Note Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreementhereunder; provided that (Ai) no Guarantee by any Restricted Subsidiary of any Indebtedness constituting a Specified Junior Financing Obligation shall be permitted unless such guaranteeing party shall have also provided a Guarantee of the Note Obligations on the terms set forth herein and such Guarantee of the Specified Junior Financing Obligation shall be subordinated in right of payment to the Note Obligations pursuant to terms substantially consistent with Exhibit G hereto, (ii) if the Indebtedness being guaranteed under this Section 11.1(e) Guaranteed is subordinated to the Note Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of the Note Obligations on terms at least as favorable (as reasonably determined by the Company) to the Lenders Purchasers as those contained in the subordination of such Indebtedness and (Biii) no guarantee any Guarantee by a Restricted Subsidiary that is not a Note Party of any Permitted Ratio Debt orGuarantor of any Indebtedness under Section 8.1(g) or (m) (or any Permitted Refinancing in respect thereof) shall only be permitted if such Guarantee meets the requirements of clauses (m), (g) or (sm), as the case may be, of this Section 8.1;
(d) Indebtedness of the Company or any Restricted Subsidiary owing to any Note Party or any other Restricted Subsidiary (or issued or transferred to any direct or indirect parent of a Note Party which is substantially contemporaneously transferred to a Note Party or any Restricted Subsidiary of any Permitted Additional Debt a Note Party) to the extent constituting an Investment permitted by Section 8.3; provided that (or i) no such Indebtedness under clause (b) above) owed to a Note Party shall be permitted evidenced by a promissory note unless such promissory note constitutes a negotiable instrument and is pledged to the Collateral Agent to the extent required by (and in accordance with) the terms of the Security Agreement and (ii) all such Indebtedness of any Note Party owed to any Restricted Subsidiary that is not a Note Party shall have also provided a guarantee of be unsecured and subordinated to the Note Obligations pursuant to subordination terms substantially on consistent with the terms set forth in Section 5.1 of the GuaranteeSecurity Agreement;
(i) Attributable Indebtedness and other Indebtedness (including Capitalized Leases) financing an acquisition, construction, repair, replacement, lease or improvement of a fixed or capital asset incurred by the Company or any Restricted Subsidiary within 365 days of the acquisition, construction, repair, replacement, lease or improvement of the applicable asset and any Permitted Refinancing thereof in an aggregate amount not to exceed the greater of $37,500,000 and 30% of LTM EBITDA, in each case determined at the time of incurrence (together with any Permitted Refinancings thereof) and (ii) Attributable Indebtedness arising out of sale-leaseback transactions permitted by Section 8.5(m) and any Permitted Refinancing of such Attributable Indebtedness in an aggregate amount as between clauses (i) and (ii) not to exceed $5,000,000 at any time outstanding;
(f) Guarantee Obligations (i) Indebtedness in respect of Swap Contracts designed to hedge against the Company’s or any Restricted Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes and Guarantees thereof;
(g) Indebtedness of the Company or any Restricted Subsidiary (i) assumed in respect connection with any Permitted Acquisition (provided that such Indebtedness is not incurred in contemplation of obligations of (such Permitted Acquisition) or to) suppliers, customers, franchisees, lessors, licensees or sublicensees any Permitted Refinancing thereof that satisfies the Junior Debt Conditions or (ii) otherwise constituting Investments incurred to finance any Permitted Acquisition or any Permitted Refinancing thereof that satisfies the Junior Debt Conditions; provided that after giving pro forma effect to such Permitted Acquisition and the assumption or incurrence of such Indebtedness, as applicable, the aggregate principal amount of such Indebtedness does not exceed (a) if such Indebtedness is secured by a Lien on the Collateral that is senior to the Liens securing the Note Obligations, an unlimited amount so long as immediately after giving Pro Forma Effect thereto and the use of proceeds thereof the Consolidated First Lien Net Leverage Ratio is no greater than 3.50 to 1; and (b) the greater of $25,000,000 and 25% of LTM EBITDA, in each case, determined at the time of incurrence plus an additional unlimited amount (x) if such Indebtedness is secured by Liens that are junior to the Liens securing the Note Obligations, the Consolidated Senior Secured Net Leverage Ratio (determined on a Pro Forma Basis and without netting the cash proceeds of any such Indebtedness being so incurred for the purposes of such calculation) is no greater than 4.50:1.00, and (y) if such Indebtedness is unsecured Indebtedness, either (I) the Consolidated Total Net Leverage Ratio (determined on a Pro Forma Basis and without netting the cash proceeds of any such Indebtedness for the purposes of such calculation) is no greater than 5.00:1.00 or (II) the Interest Coverage Ratio (calculated on a Pro Forma Basis) for the end of the most recent Test Period is not less than 2.00:1.00, and all Indebtedness incurred pursuant to this clause (b) satisfies the Junior Debt Conditions; provided that any such Indebtedness assumed or incurred by a Restricted Subsidiary that is not a Note Party (together with any Indebtedness assumed or incurred by a Restricted Subsidiary that is not a Note Party pursuant to Section 8.1(s)) does not exceed in the aggregate, (i) prior to the Trigger Date, $0 and (ii) on and after the Trigger Date, the greater of $18,750,000 and 15% of LTM EBITDA, in each case determined at the time of assumption or incurrence;$5,000,000, in aggregate, at any time outstanding; provided, further, that in the case of such Permitted Acquisition which is permitted by Sections 11.5(b)(ivpursuant to the proviso in Section 8.3(i) and is to be funded with the proceeds of Qualified Debt, an amount of Qualified Debt not to exceed, when aggregated with all other such Qualified Debt issued in connection with Section 8.3(i), the applicable the Qualified Debt Investment Basket Amount at such time may be incurred solely to fund any such acquisition so permitted pursuant to such proviso;
(viii), (xv), (xvih) and (xvii)Indebtedness representing deferred compensation to employees of the Company or any of its Restricted Subsidiaries incurred in the ordinary course of business;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, consisting of promissory notes issued by the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Company or any of its Subsidiaries) Restricted Subsidiaries to current or Indebtedness attaching former officers, managers, consultants, directors and employees, their respective estates, spouses or former spouses to finance the assets that are acquired by the Borrower purchase or any Restricted Subsidiary, in each case after the Funding Date as the result redemption of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each Equity Interests of the Guarantee, the Security Agreement and the Pledge Agreement, Company permitted by Section 8.6 in each case an aggregate amount not to the extent required under Section 10.10exceed $1,000,000 at any time outstanding; provided that the assets covered by such pledges and security interests may, Indebtedness shall be subordinated in right of payment to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance Note Obligations on terms reasonably satisfactory to the Administrative Collateral 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance by the Company or any of its Restricted Subsidiaries in connection with a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security DocumentsInvestment not prohibited hereunder (including through a merger) or any Disposition permitted hereunder, in each case,and constituting customary indemnification obligations or obligations in respect of customary purchase price (including earnouts and similar obligations, but not to exceed 10% of the extent required under Section 10.10aggregate purchase price of any such Permitted Acquisition) or other similar adjustments;
(Bk) after giving effect to Indebtedness consisting of obligations of the incurrence Company or any of any its Restricted Subsidiaries under deferred compensation or other similar arrangements incurred by such Indebtedness, to such acquisition and to any related pro forma adjustment, the Borrower shall be Person in compliance on a pro forma basis connection with the Financial Performance Covenants, as such covenant are recomputed as at the last day of 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 thanMTN Acquisition Transactions, 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower EMC Acquisition Transactions and Permitted Acquisitions or any Subsidiary Guarantor except to the extent permitted under Section 11.5other Investment not prohibited hereunder;
Appears in 1 contract
Sources: Securities Purchase Agreement (Global Eagle Entertainment Inc.)
Limitation on Indebtedness. The Borrower will Company shall not, and will shall not permit any of the its Restricted Subsidiaries to, createdirectly or indirectly, incur, assume or suffer to exist Incur any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any feesunless, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary after giving pro forma effect to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 Incurrence of such Indebtedness and the receipt and application of the proceeds thereof, no Default or Event of Default would occur as a consequence of, or be continuing following, such Incurrence and application and either (Ba) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (after giving pro forma effect to such Incurrence and application, the Consolidated Interest Coverage Ratio would exceed 2.5 to 1.0 or Indebtedness under clause (b) above) shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee Indebtedness is Permitted Indebtedness. In the event that an item of the Obligations substantially on the terms set forth in the Guarantee;
(f) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital LeasesIncurred by the Company to banks or other lenders) incurred within 270 days of, or assumed in connection withcould be Incurred pursuant to more than one of the provisions of Permitted Indebtedness, the 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 Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided thatCompany, in its sole discretion, will classify or reclassify such item of Indebtedness and only be required to include the case of each of the foregoing subclauses (i) amount and (ii), the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence type of such Indebtedness in (and to have Incurred such Indebtedness pursuant to) one of the clauses of Permitted Indebtedness; and an item of Indebtedness (including Indebtedness Incurred by the Company to banks or other lenders) may for this purpose be divided into more than one of the types of Permitted Indebtedness. Accrual of interest, accretion or amortization of original issue discount and the payment of interest on any Indebtedness in the form of additional Indebtedness with the Financial Performance Covenantssame terms, as such covenants are recomputed as at the last day will not be deemed to be an incurrence of the most recently ended Test Period as if such incurrence had occurred on the first day Indebtedness for purposes of such Test Period)this Section 4.03; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Subsidiaryprovided, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 amount thereof is included in Consolidated Interest Expense of the type that could have been incurred under Section 11.1(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 Covenants, Company as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;accrued.
Appears in 1 contract
Sources: Indenture (Stone Energy Corp)
Limitation on Indebtedness. (A) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) any Restricted Subsidiary to the Borrower or its any other Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) if by a Restricted Foreign Subsidiary of any Indebtedness of the Indebtedness being guaranteed under this Section 11.1(eBorrower and (b) in respect of the Permitted Subordinated Debt, unless such Guarantee is made by a Guarantor and such Guarantee is unsecured and subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of same extent as 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 of any applicable Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeSubordinated Debt;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.11, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof 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)) above, provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $75,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any in respect of Hedge Agreements;
(i) Indebtedness in respect of Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessSubordinated Debt;
(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 Funding Closing Date as the result of a Permitted Acquisition; , provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),
, (C) (1y)(A) the Stock capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and delivers any other Security Documents, security arrangements in each case, relation to the Obligations) to the extent required under Section 10.10;
Sections 9.11 or 9.12, as applicable, provided that the requirements of this subclause (By) after giving effect shall not apply to an aggregate amount at any time outstanding of up to (and including) the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness incurred under clause (k) below, when taken together, does not exceed $150,000,000 in the aggregate at any time outstanding, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the incurrence extent otherwise permitted hereunder, (x) the principal amount 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 Covenants, as such covenant are recomputed as at the last day of 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 thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon any event of defaulty) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence); anddirect and contingent obligors with respect to such Indebtedness are not changed;
(Di) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance a Permitted Acquisition, provided that (x) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (other than any Person acquired (the “acquired Person”) as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, by the Borrower, (y)(A) the Borrower pledges the capital stock of such acquired Person to the Administrative Agent to the extent required under Section 9.12 and (B) such acquired Person executes a supplement to the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and security arrangements in relation to the Obligations) to the extent required under Sections 9.11 or 9.12, as applicable, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any Subsidiary Guarantor time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness assumed or permitted to exist under clause (j) above, when taken together, does not exceed $150,000,000 in the aggregate at any time outstanding, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted hereunder;
(l) Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed the Dollar Equivalents of $125,000,000 (which amount shall include the aggregate outstanding amount at any time of any Indebtedness of Restricted Foreign Subsidiaries existing at the Closing Date);
(m) (i) Indebtedness incurred in connection with any Permitted Sale Leaseback and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(i) additional Indebtedness, provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (n) shall not at any time exceed $100,000,000; and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; and
(o) Indebtedness in respect of Permitted Additional Subordinated Notes to the extent that the Net Cash Proceeds therefrom are, immediately after the receipt thereof, applied to the prepayment of Term Loans in accordance with Section 5.2
(B) Neither Parent nor Holdings will create, incur, assume or suffer to exist any Indebtedness except (1) with respect to Parent, Qualified PIK Securities and (2) the guarantee obligations of Parent and Holdings of the Subordinated Notes under Section 11.5;the Subordinated Note Indenture (provided that Holdings shall not guarantee the Subordinated Notes unless (i) Holdings also has guaranteed the Obligations pursuant to the Guarantee, (ii) such guarantee of the Subordinated Notes is unsecured and subordinated to such guarantee of the Obligations on terms no less favorable to the Lenders than the subordination provisions of the Subordinated Notes and (iii) such guarantee of the Subordinated Notes provides for the release and termination thereof, without action by any party, upon any release and termination of such guarantee of the Obligations).
(C) Neither of Parent, Holdings nor the Borrower will, nor will they permit any Subsidiary to, issue any preferred stock or other preferred equity interests, other than, in the case of Parent, Qualified PIK Securities.
Appears in 1 contract
Sources: Credit Agreement (Sealy Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness Documents (including Guarantee Obligations thereunderpursuant to Section 2.17) in respect of the Senior 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 Refinance such Indebtedness;
(b) [Reserved];
(c) Intercompany loans Indebtedness (including Guarantee Obligations thereunder) in respect of (i) the 2020 Second Lien Facility and advances made by any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness, in each case, if secured, subject to the Intercreditor Agreement and (ii) the Third Lien Facility and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(d) Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its any Restricted Subsidiaries so long as Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agentnot a Guarantor, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesconsequences shall be subordinated to the Obligations pursuant to the Intercompany Note, (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;
(de) Indebtedness in respect of any bankers’ acceptanceacceptances, bank guarantees, letter letters of credit, warehouse receipt receipts or similar facilities instruments entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims); provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the incurrence thereof;
(ef) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 11.1(e) 10.1(f), guarantee Indebtedness that such Restricted Subsidiary could not otherwise itself incur under this Section 11.110.1) 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 11.1(e10.1(f) 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 of any Permitted Additional Debt (or Debt, Indebtedness under clause (bc) above) above or other Junior Debt 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;
(fg) Guarantee Obligations (i) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (j), (q), (r), (s) and (xviit);
(h) (i) Indebtedness (including Indebtedness arising under Capital Capitalized Leases) incurred prior to or within 270 365 days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) to finance the acquisition, construction, lease, repair, replacement expansion, or improvement of such fixed or capital assetsassets (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of installation and the beginning of the full productive use of such asset); (ii) Indebtedness arising under Capital Capitalized Leases, other than (A) Capital Capitalized Leases in effect on the Funding Closing Date and (B) Capital Capitalized 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 Covenants, as such covenants are 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)above; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness; provided, that the aggregate principal amount of Indebtedness permitted by subclauses (i), (ii) and (iii) of this Section 10.1(h) shall not exceed at any time outstanding the greater of $30,000,000 and 2.0% of Consolidated Total Assets; and (iv) Indebtedness (including Capitalized Leases) incurred from, or arising out of, financing the acquisition, replacement, lease or improvement of compressors (or similar equipment) in the aggregate amount not to exceed the greater of $25,000,000 and 1.6% of Consolidated Total Assets, in each case, determined at the time of incurrence (together with any Permitted Refinancing Indebtedness incurred in respect thereof) at any time outstanding;
(hi) Indebtedness outstanding on the Funding Date listed date hereof and set forth on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(ij) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(k) Indebtedness of a Person the Borrower (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness) (x) incurred in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 or (y) assumed in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 so long as, in the case of Indebtedness attaching assumed pursuant to the assets clause (y) hereof, such Indebtedness is not incurred in contemplation of a Person such Permitted Acquisition or similar Investment; provided that, after giving Pro Forma Effect to such Permitted Acquisition or similar Investment and the incurrence or assumption of such Indebtedness, the aggregate amount of such Indebtedness does not exceed (x) the greater of (A) $30,000,000 and (B) 2.0% of Consolidated Total Assets at any time outstanding plus (y) any additional amount of such Indebtedness so long as (i) if such Indebtedness is unsecured, either (X) the Consolidated Total Net Leverage Ratio determined on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness) would be lower than the Consolidated Total Net Leverage Ratio immediately prior thereto or (Y) the Borrower would be permitted to incur $1.00 of unsecured, senior subordinated or subordinated Indebtedness, subject to a maximum Consolidated Total Net Leverage Ratio of 3.50:1.00 determined on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness) and (ii) if such Indebtedness is secured by Liens on assets that constitute Collateral, either (X) the Consolidated Secured Net Leverage Ratio determined on Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness) would be lower than the Consolidated Total Net Leverage Ratio immediately prior thereto or (Y) the Borrower would be permitted to incur $1.00 of secured Indebtedness, subject to a maximum Consolidated Secured Net Leverage Ratio of 3.50:1.00 determined on a Pro Forma Basis (determined without netting the cash proceeds of any such Indebtedness); provided, further that (i) in either casethe case of Indebtedness incurred pursuant to clauses (x) and (y) hereof, becomes any such Indebtedness shall have a Restricted Subsidiary maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred or assumed and have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facility and (or is ii) any such Indebtedness incurred pursuant to clause (x) hereof by a Restricted Subsidiary that survives is not a merger with such Person or Credit Party shall not exceed in the aggregate at any time outstanding the greater of its Subsidiaries) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary$37,500,000 and 2.5% of Consolidated Total Assets, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed determined at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agentincurrence; provided, further, that the requirements of this clause (CSection 10.1(k) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(h), 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(iil) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness[Reserved];
(j) (im) Indebtedness incurred to finance a arising from Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent Intercompany Activities to the extent required under constituting an Investment permitted by Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.1010.5;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Sources: Credit Agreement (Vine Energy Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Section 2.16);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Borrower arising under the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and or any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessIndebtedness so long as no Person shall guarantee such Indebtedness or Permitted Refinancing Indebtedness thereof unless such Person has guaranteed or contemporaneously guarantees the Obligations;
(c) Intercompany loans and advances made by Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries so long as any Grantor; provided that any such Indebtedness owing by a Guarantor to a Subsidiary that is evidenced by an intercompany note and subject to subordination terms acceptable not a Guarantor shall be subordinated to the Administrative AgentObligations pursuant to the Intercompany Note, (ii) any Subsidiary that is not a Grantor owing to any other Subsidiary that is not a Grantor and (iii) to the extent permitted by Requirements of Law and Section 10.5, any Subsidiary that is not giving rise a Grantor owing to material adverse tax consequencesthe Borrower or any Guarantor;
(d) Indebtedness in respect of any bankers’ acceptanceacceptances, bank guarantees, letter letters of credit, warehouse receipt receipts or similar facilities instruments entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims); provided that any reimbursement obligations in respect thereof are reimbursed within thirty (30) days following the incurrence thereof;
(e) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 Guarantor may not, by virtue of this Section 11.1(e) 10.1(e), guarantee Indebtedness that such Restricted Subsidiary could not otherwise itself incur or is expressly prohibited from guaranteeing under this Section 11.110.1) 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 11.1(e10.1(e) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of the Obligations pursuant to a Subordination Agreement 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 of any Permitted Additional Debt (or Indebtedness under clause (bh) above) of this Section 10.1 or Other Debt 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) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) subject to clauses (e)(A) and (B) of this Section 10.1, otherwise constituting Investments permitted by Sections 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (n) and (xviiq);
(g) (i) Indebtedness (including Indebtedness arising under Capital Capitalized Leases) incurred prior to or within 270 three hundred sixty-five (365) days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) to finance the acquisition, construction, lease, repair, replacement replacement, expansion, or improvement of such fixed or capital assets; assets (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of installation and the beginning of the full productive use of such asset), (ii) Indebtedness arising under Capital Capitalized Leases, other than (A) Capital Capitalized Leases in effect on the Funding Closing Date and (B) Capital Capitalized 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 Covenants, as such covenants are 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)above; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such IndebtednessIndebtedness under this Section 10.1(g); provided, that the aggregate principal amount of Indebtedness permitted by subclauses (i), (ii) and (iii) of this Section 10.1(g) shall not exceed the greater of $50,000,000 and three and one half percent (3.5%) of the Borrowing Base at the time of incurrence;
(h) Indebtedness outstanding on the Funding Date listed date hereof and set forth on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness in respect of a Person or Indebtedness attaching Hedge Agreements, subject to the assets limitations set forth in Section 10.10;
(j) Indebtedness 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 (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness) incurred in connection or assumed with any Restricted SubsidiaryPermitted Acquisition or similar Investment permitted under Section 10.5 in an aggregate principal amount of Indebtedness outstanding at any time (i) not to exceed five percent (5.0%) of the Borrowing Base then in effect, so long as immediately after giving pro forma effect to such Permitted Acquisition or similar Investment and the incurrence or assumption of such Indebtedness, the Borrower shall be in each case compliance with the Financial Performance Covenants on a pro forma basis and no Event of Default shall have occurred and be continuing or (ii) not to exceed an amount that would cause the Consolidated Total Net Leverage Ratio to exceed 2.50 to 1.00 at the time of incurrence of such Indebtedness on a pro forma basis, so long as immediately after giving pro forma effect to such Permitted Acquisition or similar Investment and the Funding Date as the result incurrence or assumption of a Permitted Acquisitionsuch Indebtedness, no Event of Default shall have occurred and be continuing; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created the Equity Interests of the Person acquired in anticipation thereof,
(B) such Indebtedness is not guaranteed in any respect by Permitted Acquisition or similar Investment shall be pledged to the Borrower or any Restricted Subsidiary Collateral Agent and such Person (other than a Production Sharing Entity) shall become a Guarantor in accordance with Section 9.10, in the case of any such Person Indebtedness secured by a Lien 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 junior to the Administrative Agent Lien securing the Obligations, the Borrowing Base shall be adjusted to the extent required under by Section 10.10(c) 2.14(e), and (2) in the case of any such Person executes a supplement secured Indebtedness incurred or assumed pursuant to each of the Guaranteethis Section 10.1(j), the Security Agreement holders of such Indebtedness have no recourse to property other than the property so acquired and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agentproperty so acquired shall not constitute Borrowing Base Properties; provided, further that in the case of Indebtedness incurred or assumed pursuant to this Section 10.1(j) or any applicable Permitted Refinancing Indebtedness thereof, any such Indebtedness shall have a maturity date that is after the Maturity Date and have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facility; provided further, that the requirements of this clause (CSection 10.1(j) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(g), and;
(Dk) Indebtedness arising from Permitted Intercompany Activities to the extent constituting an Investment permitted by Section 10.5;
(l) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, and obligations in respect of letters of credit, bank guaranties or instruments related thereto, in each case provided in the ordinary course of business or consistent with past practice or industry practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practice;
(i) other additional Indebtedness, provided that (A) the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(m) shall not at the time of incurrence thereof and immediately after giving effect thereto and the use of proceeds thereof on a pro forma basis exceed the greater of $75,000,000 and five percent (5.0%) of the Borrowing Base at the time of incurrence and (B) immediately after giving effect to the assumption incurrence or issuance thereof and the use of any such Indebtednessproceeds therefrom, to such acquisition (I) no Event of Default shall have occurred and to any related pro forma adjustment, the Borrower be continuing and (II) no Borrowing Base Deficiency shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption result therefrom and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(jn) Indebtedness in respect of (i) Indebtedness incurred to finance a Permitted AcquisitionAdditional Debt; provided that:
that (Ax) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) immediately after giving effect to the incurrence or issuance thereof and the use of any such Indebtednessproceeds therefrom, to such acquisition and to any related pro forma adjustment, (A) the Borrower shall be in compliance with the Financial Performance Covenants on a pro forma basis with basis, (B) no Event of Default shall have occurred and be continuing and (C) no Borrowing Base Deficiency shall result therefrom, (y) the Financial Performance CovenantsBorrowing Base shall be adjusted to the extent required by Section 2.14(e), as and (z) to the extent such covenant are recomputed as at Indebtedness is expressly subordinated in right of payment to the last day of the most recently ended Test Period as if Obligations, such incurrence Indebtedness shall be subject to a Subordination Agreement and acquisition had occurred on the first day of (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Test PeriodIndebtedness;
(Co) Cash Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements;
(p) 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;
(q) 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 assumed or entered into in connection with the Transactions or other Investments permitted by Section 10.5 and the Disposition of any business, assets or Equity Interests not prohibited hereunder;
(r) Indebtedness of the Borrower or any Restricted Subsidiary consisting of obligations to pay insurance premiums;
(s) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower or, to the extent attributable to the ownership or operation of the Borrower and its Subsidiaries and the Restricted Subsidiaries incurred in the ordinary course of business or consistent with past practice or industry practice;
(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 or any other Investment permitted hereunder;
(u) Indebtedness associated with bonds or surety obligations required by Requirements of Law or by Governmental Authorities in connection with the operation of Oil and Gas Properties in the ordinary course of business;
(v) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit;
(w) Indebtedness consisting of obligations in respect of Service Agreement Undertakings;
(x) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (w) above; and
(y) Permitted Pari Term Loan Debt incurred on or prior to the earlier of (x) October 30, 2024 and (y) the maturity first Term Loan Facility Closing Date; provided that the aggregate principal amount of such Indebtedness is Permitted Pari Term Loan Debt permitted by this clause (y) shall not earlier thanexceed, 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 Maturity Date (determined at the time of issuance or incurrenceincurrence thereof, an aggregate principal amount equal to the lesser of the following: (A) the Borrowing Base then in effect minus the Aggregate Elected Revolving Commitment Amounts then in effect and (B) an amount equal to thirty-three and one-third percent (33-1/3%) of the sum of (1) the Aggregate Elected Revolving Commitment Amounts then in effect plus (2) the aggregate principal amount of Permitted Pari Term Loan Debt then outstanding (after giving effect to any such incurrence of Permitted Pari Term Loan Debt); and
(D) . For the purposes of determining compliance with, and the outstanding principal amount of Indebtedness incurred pursuant to and in compliance with, this Section 10.1, in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in this Section 10.1, the Borrower, 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 is not guaranteed in any respect by one of the Borrower or any Subsidiary Guarantor except to the extent permitted under clauses of this Section 11.5;10.1.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Guarantor shall be permitted so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax Tax consequences, (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;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e10.1(d) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(d) 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 (in the reasonable determination of the Administrative Agent) as those contained in the subordination of such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv10.5(d), (viiih), (xvo), (xvi) p), and (xviiq);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 (Af) Capital Leases in effect on the Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided thatPurchase Money Indebtedness, 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 Covenants, as such covenants are 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 in respect of the foregoing; provided that the aggregate principal amount of Indebtedness outstanding at any time pursuant to Refinance any this clause (f) shall not exceed $50,000,000;
(g) Indebtedness consisting of secured financings by a Foreign Subsidiary permitted to exist under this Agreement and in which no Credit Party’s assets are used to secure such Indebtedness;
(h) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees and similar obligations (including such obligations in respect of letters of credit and bank guarantees related thereto and such obligations incurred to secure health, safety and environmental obligations), in each case, not in connection with money borrowed and provided in the ordinary course of business or consistent with past practice;
(i) (i) other additional Indebtedness and (ii) any Permitted Refinancing Indebtedness issued as incurred to Refinance such Indebtedness; provided that the aggregate principal amount of Indebtedness outstanding on the Funding Date listed on Schedule 11.1 at any time pursuant to this clause (i) shall not at any time exceed $25,000,000;
(j) Indebtedness in respect of Permitted Additional Debt and any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessIndebtedness in an aggregate principal amount not to exceed $150,000,000; provided that (i) after giving effect to the incurrence or issuance thereof, the application of the proceeds thereof, and any automatic reduction of the Borrowing Base pursuant to Section 2.14(f), on account thereof, the Borrower shall (A) be in compliance on a pro forma basis with the Financial Performance Covenants as such covenants are recomputed as of the last day of the most recently ended Test Period for which Section 9.1 Financials have been delivered as if such incurrence or issuance had occurred on the first day of such Test Period and (B) no Event of Default or Borrowing Base Deficiency shall exist and (ii) the Borrowing Base shall be reduced on the date of the incurrence or issuance of such Indebtedness in accordance with Section 2.14(f);
(k) Cash Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(l) 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;
(m) 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 Permitted Acquisitions, other Investments and the Disposition of any business, assets or Stock permitted hereunder;
(n) Indebtedness of the Borrower or any Restricted Subsidiary consisting of (i) obligations to pay insurance premiums or (ii) obligations contained in firm transportation or supply agreements or other take or pay contracts, in each case arising in the ordinary course of business;
(o) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) and the Restricted Subsidiaries incurred in the ordinary course of business;
(p) Indebtedness consisting of promissory notes issued by the Borrower or any Guarantor to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) 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;
(q) 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, Permitted Acquisitions or any other Investment permitted hereunder;
(r) Indebtedness associated with self-insurance obligations or bid, plugging and abandonment, appeal, reimbursement, performance, surety and similar bonds, letters of credit and completion guarantees required by Requirements of Law or by Governmental Authorities in connection with the operation of Oil and Gas Properties, Carbon Dioxide Interests or other material properties in the ordinary course of business or obligations and worker’s compensation claims in the ordinary course of business;
(s) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (r) above and clauses (t) and (u) below;
(t) Indebtedness arising as a result of the Genesis Pipeline Dropdown Transactions outstanding as of the Closing Date and any accrued but unpaid interest thereon;
(u) Indebtedness in respect of any Permitted Additional Revenue Bonds issued or incurred in connection with Permitted Additional Revenue Bond Transactions, provided, that such Permitted Additional Revenue Bonds will (i) together any other Permitted Additional Revenue Bonds then outstanding, not exceed a maximum aggregate principal amount at any time outstanding more than $210,000,000, (ii) bear interest at rates identical to the interest rates set forth in this Agreement, (iii) have a maturity date that is not later than the earlier of (A) two (2) years from the date of issuance thereof and (B) the Maturity Date and (iv) provide that the Bond Purchaser’s obligations to make advances of the proceeds thereof shall expire not later than the earlier of (A) two (2) years from the date of issuance of such Permitted Additional Revenue Bonds and (B) the Maturity Date; provided, further, that after giving effect to the incurrence or issuance thereof:
(i) no Default, Event of Default or Borrowing Base Deficiency then exists or would result therefrom;
(ii) such transaction is on substantially similar terms, and pursuant to substantially similar Permitted Additional Revenue Bond Documents, as the transaction evidenced by the “Bond Offering” (as such term is defined in the Pre-Petition Credit Agreement in effect immediately prior to the Closing Date) and the “Bond Documents” (as such term is defined in the Pre-Petition Credit Agreement in effect immediately prior to the Closing Date) executed and delivered in connection therewith, which terms shall provide that any obligation of the Bond Purchaser to purchase Permitted Additional Revenue Bonds shall be limited to the amount of Borrowings that are then available under and in accordance with the terms of this Agreement;
(iii) at least five (5) Business Days prior to the date of the consummation of the proposed transaction, the Borrower shall have delivered to the Administrative Agent (1) all Permitted Additional Revenue Bond Documents to be entered into in connection with such proposed transaction, each of which shall be in substantially final form and reasonably acceptable to the Administrative Agent and (2) a certificate signed by an Authorized Officer of the Borrower certifying that such transaction complies with this Section 10.1(u);
(iv) the Borrower shall have provided the Administrative Agent with copies of resolutions and comparable authorizations approving such transaction, accompanied by a certificate of an Authorized Officer of the Borrower certifying that such copies are true and correct;
(v) the Borrower would be entitled to a Borrowing under Section 2.1 in the amount of such Permitted Additional Revenue Bonds; and
(vi) the Administrative Agent shall have been provided with such other documents, instruments and agreements as the Administrative Agent may reasonably request in connection with such transaction;
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, that 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 Funding Closing Date as the result of (1) a Permitted Acquisition; Acquisition or (2) an Investment in a Restricted Subsidiary (or an entity that becomes a Restricted Subsidiary as a result of such transaction) permitted pursuant to Section 10.5; provided that:
: (A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, and was not created in 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) 100% of the Stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c9.10(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement Guarantee and the Pledge and Security Agreement, in each case to the extent required under Section 10.10; 9.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.210.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; 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 described in Section 11.1(g10.1(f), and
; and (D) after giving effect to the assumption of any such Indebtedness, to such acquisition or Investment and to any related pro forma adjustment, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period for which Section 9.1 Financials have been delivered as if such assumption and acquisition or Investment had occurred on the first day of such Test Period;
Period; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
; provided, that the aggregate principal amount of Indebtedness at any time outstanding pursuant to this clause (jv) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;exceed $15,000,000.
Appears in 1 contract
Sources: Credit Agreement (Denbury Inc)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) Indebtedness of any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to any other Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ ' acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.11, (ii) Indebtedness arising under Capital Leases entered into in connection with Real Estate Financings (other than the Closing Date Securitization) and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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)) above, provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $75,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on in respect of Hedge Agreements;
(i) Indebtedness in respect of the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessSubordinated Notes;
(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 Subsidiariesincluding an Acquisition Subsidiary) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary (including any Acquisition Subsidiary), in each case after the Funding Closing Date as the result of a Permitted Acquisition; , provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) 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),or
(C) (1A) the Stock capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) and the Pledge Agreement, (2B) such Person executes a supplement to each of the Guarantee, the Security Pledge Agreement and the Pledge Agreement, in each case Security Agreement to the extent required under Section 10.10; provided that 9.11, Section 9.12 and Section 9.13, respectively, and (C) if any such Indebtedness is secured, the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, Obligations are equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; providedsecured, further, provided that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any time outstanding of up to (and including) $75,000,000 of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness incurred under clause (k) below, when taken together, does not exceed $175,000,000 in the aggregate at any time outstanding, provided that, when calculating the outstanding amount of Indebtedness for purposes of this subclause (z), Indebtedness of the type that could have been incurred under Section 11.1(g)any Acquisition Subsidiary, and
(D) after giving effect Indebtedness attaching to the assumption assets of any such Indebtedness, Acquisition Subsidiary and Indebtedness attaching to such acquisition and to assets acquired by any related pro forma adjustment, the Borrower Acquisition Subsidiary shall be in compliance on a pro forma basis with the Financial Performance Covenantsexcluded, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness incurred specified in subclause (i) above, provided that (x) the principal amount of any such Indebtedness so refinanced, refunded, renewed or extended is not increased above the principal amount thereof outstanding immediately prior to Refinance such Indebtednessrefinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness so refinanced, refunded, renewed or extended are not changed;
(j) (i) Indebtedness of the Borrower or any Restricted Subsidiary (including any Acquisition Subsidiary) incurred to finance a Permitted Acquisition; , provided that:
that (Ax) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (1other than any Person acquired (the "acquired Person") as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, by the Borrower, (y)(A) the Stock capital stock of the such acquired Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and the Pledge Agreement, (2B) such acquired Person executes a supplement to each of the Guarantee, the Security Pledge Agreement and the Pledge Security Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.109.11, Section 9.12 and Section 9.13, respectively and (C) if a guarantee by such acquired Person of any such Indebtedness is secured by assets of such acquired Person, the Obligations are equally and ratably secured, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) $75,000,000 of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness assumed or permitted to exist under clause (j) above, when taken together, does not exceed $175,000,000 in the aggregate at any time outstanding, provided that, when calculating the outstanding amount of Indebtedness for purposes of this subclause (z), Indebtedness of any Acquisition Subsidiary, Indebtedness attaching to assets of any Acquisition Subsidiary and Indebtedness attaching to assets acquired by any Acquisition Subsidiary shall be excluded, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that (x) the principal amount of any such Indebtedness so refinanced, refunded, renewed or extended is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness so refinanced, refunded, renewed or extended are not changed;
(Bl) after giving effect Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed (i) $55,000,000 minus (ii) the incurrence amount equal to (x) the aggregate amount of Indebtedness incurred and outstanding at such time pursuant to clause (o) below minus (y) $75,000,000;
(i) Indebtedness incurred in connection with any Real Estate Financing (other than the Closing Date Securitization) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that (x) the principal amount of any such IndebtednessIndebtedness so refinanced, refunded, renewed or extended is not increased above the principal amount thereof outstanding immediately prior to such acquisition refinancing, refunding, renewal or extension and to any related pro forma adjustment, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test Period;
(Cy) the maturity of direct and contingent obligors with respect to such Indebtedness is so refinanced, refunded, renewed or extended are 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 Maturity Date (determined at the time of issuance or incurrence)changed; and
(Dn) such Indebtedness is of the Closing Date Securitization Subsidiaries incurred in connection with the Closing Date Securitization;
(i) additional Indebtedness, provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (n) shall not guaranteed at any time exceed the sum of (x) $75,000,000 and (y) the amount equal to (A) $55,000,000 minus (B) the aggregate amount of Indebtedness then outstanding under clause (l) above, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;subclause (i) above.
Appears in 1 contract
Sources: Revolving Credit Agreement (Kindercare Learning Centers Inc /De)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, createdirectly or indirectly, incurIncur, assume contingently or suffer otherwise, with respect to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15, and (ii) any Credit Agreement Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(b) Indebtedness arising under the Senior Unsecured Notes Documents (including Guarantee Obligations thereunderany guarantees in respect thereof) in an aggregate principal amount not to exceed (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding), except as contemplated by the Senior Notes definition of “Permitted Refinancing Indebtedness”, $1,100,000,000 and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and (ii) any Permitted Refinancing Indebtedness issued or incurred Incurred to Refinance (in whole or in part) such Indebtedness; provided that, notwithstanding any other provision herein to the contrary, no Person other than a Credit Party shall at any time be an obligor in respect of any such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(di) Indebtedness constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letter letters of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of workers compensation claims, or consistent with past practice, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims), 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;
(ed) subject to compliance with Section 11.5Except as otherwise limited by clauses (a), (b), (h) and (u), Guarantee Obligations incurred Incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement; provided that (A) that, if the applicable Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligations, any 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeObligations;
(fe) Guarantee Obligations (i) incurred Incurred in the ordinary course of business or consistent with past practice in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)distribution partners;
(f) (i) Indebtedness (including Financing Lease Obligations and other Indebtedness arising under Capital Leasesmortgage financings and purchase money Indebtedness (including any industrial revenue bond, industrial development bond or similar financings)) incurred within 270 days of, or assumed in connection with, the proceeds of which are used to finance the acquisition, development, construction, lease, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of fixed or capital assets to finance or otherwise Incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is Incurred concurrently with or within 270 days after the completion of the applicable acquisition, development, construction, lease, repair, replacement expansionrestoration, replacement, maintenance, upgrade, expansion or improvement or the making of such fixed or capital assets; (ii) Indebtedness arising under the applicable Capital Leases, other than (A) Capital Leases in effect on the Funding Date Expenditure and (B) such Indebtedness is not Incurred to acquire Capital Leases entered into Stock of any Person; provided, further, that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to subclause clause (i) above (provided thatwhen aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, in except as contemplated by the case definition of each “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $175,000,000 and (y) 25.0% of Consolidated EBITDA of the foregoing subclauses Borrower for the Test Period most recently ended on or prior to such date of Incurrence (imeasured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(g) 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 Covenants, as such covenants are 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 Incurred to Refinance any such Indebtedness;
(g) (i) Indebtedness constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the Closing Date (and set forth on Schedule 10.1) or Financing Lease Obligations entered into pursuant to Section 10.1(f); provided that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $175,000,000 and (y) 25.0% of Consolidated EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(f); and (ii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness.
(h) Closing Date Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness in respect of Hedging Agreements Incurred in the ordinary course of business or consistent with past practice and, in each case, at the time entered into, not for speculative purposes;
(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 merger, consolidation or amalgamation 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 Funding Closing Date as the result of an Acquisition or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Permitted AcquisitionRestricted Subsidiary; provided that:
(A) subject to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred and is continuing;
(B) as of the date that any such Person becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger, consolidation or amalgamation with such a Person or any of its Subsidiaries) or the date that any such assets are acquired by the Borrower or any Restricted Subsidiary and after giving pro forma effect thereto, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(j) does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(k)(i)(B)(I) and Section 10.1(s)(i) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(j) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $100,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date plus (II) subject to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of not greater than 6.85:1.00;
(C) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,;
(BD) such Indebtedness is not guaranteed in any respect by Holdings, 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),) except to the extent permitted under Section 10.5 or Section 10.6; and
(CE) (1x) the Capital Stock of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c) 9.11 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2y) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and delivers security arrangements in relation to the Obligations) and a counterpart signature page to the Intercompany Notes, in each case to the extent required under Section 9.10, 9.11 or 9.14(b), as applicable; provided that the requirements of this clause (E) shall not apply to any Indebtedness of the type that could have been Incurred under Section 10.1(f) or Section 10.1(g);
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(k) (ai) Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance an Acquisition; provided that,
(A) subject to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred and is continuing;
(B) as of the date of such Incurrence and after giving pro forma effect thereto, and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(k), does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(j)(i)(B)(I) and Section 10.1(s)(i) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(k) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $100,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date plus (II) subject to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of not greater than 6.85:1.00;
(C) the terms of such Indebtedness do not provide for any scheduled repayment (including at maturity), mandatory repayment, redemption, repurchase, defeasance, acquisition, similar payment or sinking fund obligation prior to the Latest Maturity Date, other than customary prepayments, repurchases, redemptions, defeasances or similar payments of, or offers to prepay, redeem, repurchase, defease, acquire or similarly pay upon, a change of control, asset sale event or casualty, eminent domain or condemnation event or on account of the accumulation of excess cash flow and customary acceleration rights upon an event of default;
(D) if such Indebtedness is Incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness shall not be guaranteed in any respect by Holdings, the Borrower or any other Subsidiary Guarantor except to the extent permitted under Section 10.5;
(E) (x) the Capital Stock of any Person acquired in such Acquisitions or Investments permitted under Section 10.5 (the “acquired Person”) is pledged to the Collateral Agent to the extent required under Section 9.11 and (y) such acquired Person executes a supplement to each of the Guarantee, the Security DocumentsAgreement and the Pledge Agreement and a counterpart signature page to the Intercompany Note (or alternative guarantee and security arrangements in relation to the Obligations), in each case, to the extent required under Section 10.109.10, 9.11 or 9.14(b), as applicable;
(BF) after giving effect the terms of such Indebtedness shall be consistent with the requirements set forth in clause (b) and, if applicable, clause (f) of the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized Officer of the Borrower delivered to the incurrence Administrative Agent at least five Business Days prior to the Incurrence of any such Indebtedness, to such acquisition and to any related pro forma adjustment, the Borrower shall be in compliance on together with a pro forma basis with the Financial Performance Covenants, as such covenant are recomputed as at the last day reasonably detailed description of the most recently ended Test Period as if such incurrence material terms and acquisition had occurred on the first day of such Test Period;
(C) the maturity conditions of such Indebtedness is not earlier thanor drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and no mandatory repayment or redemption conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (other than customary change including a reasonable description of control or asset sale offers or the basis upon any event of default) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrencewhich it disagrees); and
(DG) at the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions being consummated in connection therewith and the use of the proceeds thereof,, the aggregate principal amount of all Indebtedness Incurred by Non-Credit Parties pursuant to, and then outstanding under, this Section 10.1(k), when aggregated with the aggregate principal amount of (1) all other Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to Section 10.1(s) and (2) all Permitted Refinancing Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to clause (ii) of this Section 10.1(k), shall not guaranteed in any respect exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater of (x) $175,000,000 and (y) 25.0% of Consolidated EBITDA of the Borrower for the Test Period most recently ended on or any Subsidiary Guarantor except prior to such date of Incurrence (measured as of the extent permitted under date such Indebtedness is Incurred based upon the Section 11.59.1 Financials most recently delivered on or prior to such date);
Appears in 1 contract
Sources: Incremental Revolving Credit Commitment Increase Agreement (MultiPlan Corp)
Limitation on Indebtedness. (a) The Borrower will not, and will not permit any of the Restricted its Subsidiaries to, to create, incur, incur or assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness outstanding as of the Effective Date and any refinancings, refundings, renewals or extensions thereof (without any increase in the principal amount thereof, other than by the amount of any necessary pre-payment premiums, unpaid accrued interest and other costs of refinancing, or any shortening of the final maturity of any principal amount thereof to a date prior to the latest Maturity Date in effect as of such change);
(ii) Indebtedness of any Insurance Subsidiary incurred or issued in the ordinary course of its business or in securing insurance-related obligations (that do not constitute Indebtedness) of such Insurance Subsidiary and letters of credit, bank guarantees, surety bonds or similar instruments issued for the account of any Insurance Subsidiary in the ordinary course of its business or in securing insurance-related obligations (that do not constitute Indebtedness) of such Insurance Subsidiary, including, for the avoidance of doubt, Indebtedness to the extent the proceeds of which are used directly or indirectly (including for the purpose of funding portfolios that are used to fund trusts in order) to support AXXX, XXX and other similar life statutory reserves;
(iii) Indebtedness in respect of letters of credit, bank guarantees, surety and appeal bonds, or performance bonds or other obligations of a like nature arising in the ordinary course of business and not for capital raising purposes and issued for the account of any Non-Regulated Operating Subsidiary;
(iv) short-term Indebtedness (i.e. with a maturity of less than one year when issued, provided that such Indebtedness may include an option to extend for up to an additional one year period) of any Insurance Subsidiary incurred to provide short-term liquidity to facilitate claims payment in the event of catastrophe;
(v) Indebtedness of a Subsidiary acquired after the Effective Date or a Person merged into or consolidated with a Subsidiary after the Effective Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness, in each case, exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event, as well as any refinancings, refunds, renewals or extensions of such Indebtedness (without increase in the principal amount thereof other than by the amount of any necessary pre-payment premiums, unpaid accrued interest and other costs of refinancing);
(vi) Indebtedness owing or issued by a Subsidiary to any other Subsidiary or to the Borrower;
(vii) Guarantee Obligations made by a Subsidiary in respect of obligations of another Subsidiary;
(viii) Indebtedness under the Credit Documents;
(bix) Indebtedness represented by Qualified Securities, Trust Preferred Securities or Mandatory Convertible Securities (including Guarantee Obligations thereunder) except to the extent such Indebtedness is included in respect the calculation of the Senior 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 Refinance such IndebtednessTotal Consolidated Debt);
(cx) Intercompany loans and advances made Indebtedness of any mutual fund Subsidiary incurred to provide short-term (i.e. not anticipated to be outstanding for more than one year when incurred) liquidity to facilitate redemption payments by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesmutual fund Subsidiary;
(dxi) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities Hedge Agreements other than Hedge Agreements entered into in the ordinary course of business for speculative purposes; and
(including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or xii) other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5of such Subsidiaries, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary Indebtedness is incurred or at issued, the time such assets were acquired and, in each case, was not created in anticipation thereof,
(B) aggregate principal amount of such Indebtedness is not guaranteed in any respect by the Borrower when added to all other Indebtedness incurred 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 issued pursuant to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause (Cxii) shall and then outstanding, does not apply to any Indebtedness exceed 15% of the type that could have been incurred under Section 11.1(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 Covenants, as such covenants are recomputed as at the last day Consolidated Net Worth of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Borrower.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) Indebtedness of any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to any other Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ ' acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.12, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof 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)) above, provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $100,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder, and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on in respect of Hedge Agreements;
(i) Indebtedness in respect of the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessSubordinated Notes;
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (or is including a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiariesis also an Acquisition Subsidiary) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary (including any Acquisition Subsidiary), in each case after the Funding Closing Date as the result of a Permitted Acquisition; , provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),, (y)
(C) (1A) the Stock Borrower pledges the capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) and 9.12, (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case Guarantee to the extent required under Section 10.10; provided that 9.11 and (C) if any such Indebtedness is secured, (1) the assets covered by such pledges and security interests may, Guarantee referred to in the extent permitted by Section 11.2, preceding subclause (B) is equally and ratably secure secured or (2) in the case of assets acquired by the Borrower or any Restricted Subsidiary (other than any Acquisition Subsidiary), the Borrower's obligations hereunder or such Indebtedness assumed with Restricted Subsidiary's Guarantee, as the Secured Parties subject to intercreditor arrangements in form case may be, are equally and substance reasonably satisfactory to the Administrative Agent; providedratably secured, further, provided that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any time outstanding of up to (and including) $75,000,000 of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness incurred under clause (k) below, when taken together, does not exceed $200,000,000 in the aggregate at any time outstanding, provided that, when calculating the outstanding amount of Indebtedness for purposes of this subclause (z), Indebtedness of the type that could have been incurred under Section 11.1(g)any Acquisition Subsidiary, and
(D) after giving effect Indebtedness attaching to the assumption assets of any such Indebtedness, Acquisition Subsidiary and Indebtedness attaching to such acquisition and to assets acquired by any related pro forma adjustment, the Borrower Acquisition Subsidiary shall be in compliance on a pro forma basis with the Financial Performance Covenantsexcluded, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness incurred specified in subclause (i) above, provided that, except to Refinance the extent otherwise permitted hereunder, (x) the principal amount of any such IndebtednessIndebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(j) (i) Indebtedness of the Borrower or any Restricted Subsidiary (including any Acquisition Subsidiary) incurred to finance a Permitted Acquisition; , provided that:that (x) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (other than any Person acquired (the "acquired Person") as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, by the Borrower, (y)
(A) (1) the Stock Borrower pledges the capital stock of the such acquired Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and 9.12, (2B) such acquired Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, Guarantee to the extent required under Section 10.10;
9.11 and (C) if a guarantee by such acquired Person of any such Indebtedness is secured by assets of such acquired Person, the Guarantee referred to in the preceding subclause (B) after giving effect is equally and ratably secured, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) $75,000,000 of the incurrence aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness assumed or permitted to exist under clause (j) above, when taken together, does not exceed $200,000,000 in the aggregate at any time outstanding, provided that, when calculating the outstanding amount of Indebtedness for purposes of this subclause (z), Indebtedness of any such Indebtedness, to such acquisition and to any related pro forma adjustment, the Borrower Acquisition Subsidiary shall be excluded, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in compliance on a pro forma basis with the Financial Performance Covenantssubclause (i) above, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test Period;
provided that (Cx) the maturity principal amount of any such Indebtedness is not earlier thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and no mandatory repayment (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted hereunder;
(l) Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed (i) $20,000,000 minus (ii) the amount equal to (x) the aggregate amount of Indebtedness incurred and outstanding at such time pursuant to clause (n) below minus (y) $200,000,000;
(i) Indebtedness incurred in connection with any Permitted Sale Leaseback and (ii) any refinancing, refunding, renewal or redemption extension of any Indebtedness specified in subclause (other than customary change i) above, provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of control any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or asset sale offers or upon any event of defaultextension and (y) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence)direct and contingent obligors with respect to such Indebtedness are not changed; and
(Di) such additional Indebtedness, provided that the aggregate amount of Indebtedness is incurred and remaining outstanding pursuant to this clause (n) shall not guaranteed at any time exceed the sum of (x) $200,000,000 and (y) the amount equal to (A) $20,000,000 minus (B) the aggregate amount of Indebtedness then outstanding under clause (l) above, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;subclause (i) above.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Section 2.16);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Borrower arising under the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and or any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessIndebtedness so long as no Person shall guarantee such Indebtedness or Permitted Refinancing Indebtedness thereof unless such Person has guaranteed or contemporaneously guarantees the Obligations;
(c) Intercompany loans and advances made by Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries so long as any Grantor; provided that any such Indebtedness owing by a Guarantor to a Subsidiary that is evidenced by an intercompany note and subject to subordination terms acceptable not a Guarantor shall be subordinated to the Administrative AgentObligations pursuant to the Intercompany Note, (ii) any Subsidiary that is not a Grantor owing to any other Subsidiary that is not a Grantor and (iii) to the extent permitted by Requirements of Law and Section 10.5, any Subsidiary that is not giving rise a Grantor owing to material adverse tax consequencesthe Borrower or any Guarantor;
(d) Indebtedness in respect of any bankers’ acceptanceacceptances, bank guarantees, letter letters of credit, warehouse receipt receipts or similar facilities instruments entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims); provided that any reimbursement obligations in respect thereof are reimbursed within thirty (30) days following the incurrence thereof;
(e) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 Guarantor may not, by virtue of this Section 11.1(e) 10.1(e), guarantee Indebtedness that such Restricted Subsidiary could not otherwise itself incur or is expressly prohibited from guaranteeing under this Section 11.110.1) 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 11.1(e10.1(e) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of the Obligations pursuant to a Subordination Agreement 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 of any Permitted Additional Debt (or Indebtedness under clause (bh) above) of this Section 10.1 or Other Debt 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) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) subject to clauses (e)(A) and (B) of this Section 10.1, otherwise constituting Investments permitted by Sections 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (n) and (xviiq);
(g) (i) Indebtedness (including Indebtedness arising under Capital Capitalized Leases) incurred prior to or within 270 three hundred sixty-five (365) days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) to finance the acquisition, construction, lease, repair, replacement replacement, expansion, or improvement of such fixed or capital assets; assets (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of installation and the beginning of the full productive use of such asset), (ii) Indebtedness arising under Capital Capitalized Leases, other than (A) Capital Capitalized Leases in effect on the Funding Closing Date and (B) Capital Capitalized 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 Covenants, as such covenants are 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)above; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such IndebtednessIndebtedness under this Section 10.1(g); provided, that the aggregate principal amount of Indebtedness permitted by subclauses (i), (ii) and (iii) of this Section 10.1(g) shall not exceed the greater of $50,000,000 and three and one half percent (3.5%) of the Borrowing Base at the time of incurrence;
(h) Indebtedness outstanding on the Funding Date listed date hereof and set forth on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness in respect of a Person or Indebtedness attaching Hedge Agreements, subject to the assets limitations set forth in Section 10.10;
(j) Indebtedness 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 (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness) incurred in connection or assumed with any Restricted SubsidiaryPermitted Acquisition or similar Investment permitted under Section 10.5 in an aggregate principal amount of Indebtedness outstanding at any time (i) not to exceed five percent (5.0%) of the Borrowing Base then in effect, so long as immediately after giving pro forma effect to such Permitted Acquisition or similar Investment and the incurrence or assumption of such Indebtedness, the Borrower shall be in each case compliance with the Financial Performance Covenants on a pro forma basis and no Event of Default shall have occurred and be continuing or (ii) not to exceed an amount that would cause the Consolidated Total Net Leverage Ratio to exceed 2.50 to 1.00 at the time of incurrence of such Indebtedness on a pro forma basis, so long as immediately after giving pro forma effect to such Permitted Acquisition or similar Investment and the Funding Date as the result incurrence or assumption of a Permitted Acquisitionsuch Indebtedness, no Event of Default shall have occurred and be continuing; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created the Equity Interests of the Person acquired in anticipation thereof,
(B) such Indebtedness is not guaranteed in any respect by Permitted Acquisition or similar Investment shall be pledged to the Borrower or any Restricted Subsidiary Collateral Agent and such Person (other than a Production Sharing Entity) shall become a Guarantor in accordance with Section 9.10, in the case of any such Person Indebtedness secured by a Lien 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 junior to the Administrative Agent Lien securing the Obligations, the Borrowing Base shall be adjusted to the extent required under by Section 10.10(c) 2.14(e), and (2) in the case of any such Person executes a supplement secured Indebtedness incurred or assumed pursuant to each of the Guaranteethis Section 10.1(j), the Security Agreement holders of such Indebtedness have no recourse to property other than the property so acquired and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agentproperty so acquired shall not constitute Borrowing Base Properties; provided, further that in the case of Indebtedness incurred or assumed pursuant to this Section 10.1(j) or any applicable Permitted Refinancing Indebtedness thereof, any such Indebtedness shall have a maturity date that is after the Maturity Date and have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facility; provided further, that the requirements of this clause (CSection 10.1(j) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(g), and;
(Dk) Indebtedness arising from Permitted Intercompany Activities to the extent constituting an Investment permitted by Section 10.5;
(l) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, and obligations in respect of letters of credit, bank guaranties or instruments related thereto, in each case provided in the ordinary course of business or consistent with past practice or industry practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practice;
(i) other additional Indebtedness, provided that (A) the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(m) shall not at the time of incurrence thereof and immediately after giving effect thereto and the use of proceeds thereof on a pro forma basis exceed the greater of $75,000,000 and five percent (5.0%) of the Borrowing Base at the time of incurrence and (B) immediately after giving effect to the assumption incurrence or issuance thereof and the use of any such Indebtednessproceeds therefrom, to such acquisition (I) no Event of Default shall have occurred and to any related pro forma adjustment, the Borrower be continuing and (II) no Borrowing Base Deficiency shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption result therefrom and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(jn) Indebtedness in respect of (i) Indebtedness incurred to finance a Permitted AcquisitionAdditional Debt; provided that:
that (Ax) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) immediately after giving effect to the incurrence or issuance thereof and the use of any such Indebtednessproceeds therefrom, to such acquisition and to any related pro forma adjustment, (A) the Borrower shall be in compliance with the Financial Performance Covenants on a pro forma basis with basis, (B) no Event of Default shall have occurred and be continuing and (C) no Borrowing Base Deficiency shall result therefrom, (y) the Financial Performance CovenantsBorrowing Base shall be adjusted to the extent required by Section 2.14(e), as and (z) to the extent such covenant are recomputed as at Indebtedness is expressly subordinated in right of payment to the last day of the most recently ended Test Period as if Obligations, such incurrence Indebtedness shall be subject to a Subordination Agreement and acquisition had occurred on the first day of (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Test PeriodIndebtedness;
(Co) Cash Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements;
(p) Indebtedness incurred in the maturity 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;
(q) 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 assumed or entered into in connection with the Transactions or other Investments permitted by Section 10.5 and the Disposition of any business, assets or Equity Interests not prohibited hereunder;
(r) Indebtedness of the Borrower or any Restricted Subsidiary consisting of obligations to pay insurance premiums;
(s) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower or, to the extent attributable to the ownership or operation of the Borrower and its Subsidiaries and the Restricted Subsidiaries incurred in the ordinary course of business or consistent with past practice or industry practice;
(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 or any other Investment permitted hereunder;
(u) Indebtedness associated with bonds or surety obligations required by Requirements of Law or by Governmental Authorities in connection with the operation of Oil and Gas Properties in the ordinary course of business;
(v) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit;
(w) Indebtedness is not earlier than, and no mandatory repayment or redemption (other than customary change consisting of control or asset sale offers or upon any event obligations in respect of default) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence)Service Agreement Undertakings; and
(Dx) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (w) above. For the purposes of determining compliance with, and the outstanding principal amount of Indebtedness incurred pursuant to and in compliance with, this Section 10.1, in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in this Section 10.1, the Borrower, 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 is not guaranteed in any respect by one of the Borrower or any Subsidiary Guarantor except to the extent permitted under clauses of this Section 11.5;10.1.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries toNo Transaction Party (other than ILFC) may incur, create, incurissue, assume assume, guarantee or suffer to exist otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, whether present or future, any Indebtedness other than (i) in the following:
(a) case of the Obligors, Indebtedness arising under the Credit Loan Documents;
, (b) Indebtedness (including Guarantee Obligations thereunderii) in respect the case of the Senior Notes and any feesParent Holdco, underwriting discountsJunior Lien Debt, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(diii) Indebtedness in respect of guarantees by any bankers’ acceptanceBorrower Party of any obligation of any Transaction Party (other than of ILFC or Parent Holdco); (iv) Leases and obligations to Lessees, bank guaranteestrustees and others under the Leases, letter of credittrust agreements and other documents related thereto, warehouse receipt including any Indebtedness owed to any Lessee under any such agreement or similar facilities entered into in the ordinary course of business (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 Lease with respect to reimbursement-type obligations regarding workers compensation claims);
maintenance contributions, redelivery condition adjustment payments or any other obligation of any Subsidiary Holdco or any Lessor Subsidiary to a Lessee; (ev) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted any Transaction Party owed to be incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) ILFC and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this AgreementPledged Debt; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligationsthat, 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 no such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted unless (x) such Restricted Subsidiary shall have also provided a guarantee Indebtedness has been subordinated to the Obligations and the Junior Lien Obligations pursuant to the terms of the Obligations substantially on the terms set forth in the Guarantee;
(f) Guarantee Obligations (i) 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 11.5(b)(iv)Intercreditor Agreement, (viii), (xv), (xviy) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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)any Pledged Debt Collateral, the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Debt Collateral has been pledged to the Administrative Collateral Agent to for the extent required under Section 10.10(c) and (2) such Person executes a supplement to each benefit of the Guarantee, Secured Parties pursuant to the Security Agreement and the Pledge AgreementCollateral Agent has a first priority perfected security interest in such Pledged Debt Collateral and (z) in the case of any Pledged Debt Collateral, in each case such Pledged Debt Collateral is evidenced by an Instrument which has been delivered and indorsed to the extent Collateral Agent; (vii) Indebtedness required under Section 10.10in connection with repossession of an Aircraft or any Engine (as defined in the Security Agreement); provided that and (viii) Indebtedness in favor of the assets covered issuer of a surety, letter of credit or similar instrument to be obtained by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed any Subsidiary Holdco or any Lessor Subsidiary in connection with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements repossession or detention of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred an Aircraft or other enforcement action under Section 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Lease.
Appears in 1 contract
Sources: Term Loan Credit Agreement (International Lease Finance Corp)
Limitation on Indebtedness. The Holdings and the Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of Holdings, the Senior Notes Borrower or any Subsidiary who is a Guarantor owing to Holdings, the Borrower or any Subsidiary, (ii) any Subsidiary who is not a Guarantor owing to any other Subsidiary who is not a Guarantor and (iii) subject to Section 10.5, any feesSubsidiary who is not a Guarantor owing to Holdings, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and Borrower or any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessSubsidiary who is a Guarantor;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including and not 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)Hedging Agreements;
(ed) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of Holdings, the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) Holdings or the Borrower in respect of Indebtedness of Holdings, the Borrower or any Restricted Subsidiaries Subsidiary that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the proceeds of which are used to finance the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansionassets, or improvement otherwise incurred in respect of such fixed or capital assets; Capital Expenditures, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks, (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Closing Date (and (Bset forth on Schedule 10.1) and Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each of the foregoing subclauses (i) and (ii)) above; provided, that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $10,000,000 at any Permitted Refinancing time outstanding (excluding the aggregate amount of any operating leases which are subsequently reclassified or recharacterized as Capital Leases under GAAP), and (iv) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or (iii) above, provided that, except to the extent otherwise expressly permitted hereunder, the principal amount of any Indebtedness, modified, replaced, refinanced, refunded, renewed or extended pursuant to this clause (iv) does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension;
(g) Closing Date Indebtedness (other than the Senior Unsecured Subordinated Notes) and any modification, replacement, refinancing, refunding, renewal or extension thereof, provided that, except to Refinance the extent otherwise expressly permitted hereunder, (i) the principal amount of any Indebtedness, modified, replaced, refinanced, refunded, renewed or extended pursuant to this clause (g) does not exceed the principal amount thereof outstanding immediately prior to such Indebtednessmodification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 in respect of Hedging Agreements;
(i) Indebtedness in respect of Senior Unsecured Subordinated Notes and any refinancing, refunding, renewal or extension thereof; provided, that, except to the extent otherwise expressly permitted hereunder, (x) the principal amount thereof does not exceed the sum of (A) the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension plus (B) the amount of any interest, premiums or penalties required to be paid thereon plus (C) reasonable fees and expenses, associated thereof, (y) the direct and contingent obligors with respect to such Indebtedness are not changed and (z) such Indebtedness has terms material to the interests of the Lenders not materially less advantageous to the Lenders, taken as a whole, than those of the Senior Unsecured Subordinated Notes being refinanced (such refinancing, refunding, renewed or extended Indebtedness, “Refinanced Senior Unsecured Subordinated Notes”), and (ii) Indebtedness in respect of Permitted Refinancing Indebtedness issued or incurred Additional Notes to Refinance such Indebtednessthe extent the Net Cash Proceeds therefrom are, immediately after the receipt thereof, applied to the prepayment of Term Loans in accordance with Section 5.2(a)(i);
(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, in each case after the Funding Closing Date as the result of a Permitted Acquisition; provided that:
provided, that (Ax) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (By) such Indebtedness is not guaranteed in any respect by Holdings, the Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its Subsidiaries),
Subsidiary) and (C) (1z)(A) the Capital Stock of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c) 9.12 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and delivers any other Security Documents, security arrangements in each case, relation to the Obligations) to the extent required under Section 10.109.11 or 9.12, as applicable (provided that the assets covered by such pledges and securing interests may, to the extent permitted under Section 10.2, equally and ratably secure such Indebtedness assumed), and (ii) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided that, except to the extent otherwise expressly permitted hereunder, the principal amount of any Indebtedness modified, replaced, refinanced, refunded, renewed or extended pursuant to this clause (ii) does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension;
(Bi) after giving effect to the incurrence Indebtedness of any such Indebtedness, to such acquisition and to any related pro forma adjustmentHoldings, the Borrower shall be in compliance on or any Restricted Subsidiary incurred to finance a pro forma basis with the Financial Performance CovenantsPermitted Acquisition; provided, as such covenant are recomputed as at the last day of the most recently ended Test Period as that (x) if such incurrence and acquisition had occurred on the first day of such Test Period;
(C) the maturity of such Indebtedness is incurred by a Restricted Subsidiary that is not earlier thana Guarantor, 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by Holdings, the Borrower or any Subsidiary other Guarantor except as permitted under Section 10.5 and (y)(A) the Borrower or such other relevant Credit Party pledges the Capital Stock of any Person acquired in such Permitted Acquisition (the “acquired Person”) to the Collateral Agent to the extent required under Section 9.12 and (B) such acquired Person executes a supplement to the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and security arrangements in relation to the Obligations) to the extent required under Sections 9.11 or 9.12, as applicable, (provided that the assets covered by such pledges and securing interests may, to the extent permitted by Section 10.2, equally and ratably secure such Indebtedness incurred) and (ii) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided that, except to the extent otherwise expressly permitted under Section 11.5hereunder, the principal amount of any Indebtedness modified, replaced, refinanced, refunded, renewed or extended pursuant to this clause (ii) does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension;
(i) Indebtedness incurred in connection with any Permitted Sale Leaseback and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided, that, except to the extent otherwise expressly permitted hereunder, the principal amount of any such Indebtedness does not exceed the sum of
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit DocumentsDocuments and arising under any Revolver Refinancing Indebtedness;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) any Restricted Subsidiary to the Borrower or its any other Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided provided, that there shall be no Guarantee Obligations (Aa) if by a Restricted Foreign Subsidiary of any Indebtedness of the Indebtedness being guaranteed under this Section 11.1(eBorrower and (b) in respect of the Permitted Senior Subordinated Debt, unless such Guarantee Obligations are made by a Guarantor and such Guarantee is unsecured and subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of same extent as 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeSenior Subordinated Debt;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(if) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.11, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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)) above; provided, that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $75,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above; provided further, that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the Closing Date and listed on Schedule 10.1, and any refinancing, refunding, renewal or extension thereof; provided, that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect of Hedge Agreements;
(i) Indebtedness in respect of Permitted Senior Subordinated Debt;
(j) 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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
provided, that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) 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),
Subsidiary) and (C) (1y)(A) the Stock capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.11 or Section 9.12 and (2B) such Person executes a supplement to each of the Guarantee, Guarantee and the Security Agreement (or alternative guarantee and security arrangements in relation to the Pledge Agreement, in each case Obligations) to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests maySections 9.11 or 9.12, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agentas applicable; provided, further, that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any Indebtedness time outstanding of up to (and including) the Guarantee and Collateral Exception Amount at such time of the type that could have been incurred under Section 11.1(g)aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness incurred specified in subclause (i) above; provided, that except to Refinance the extent otherwise permitted hereunder, (x) the principal amount of any such IndebtednessIndebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(j) (ik) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance a Permitted Acquisition; provided that:provided, that (x) such Indebtedness is unsecured or secured by Liens junior to those securing the Obligations, (y)
(A) (1) the Stock Borrower or such Restricted Subsidiary pledges the capital stock of the such acquired Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and 9.11 or Section 9.12 and
(2B) such acquired Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and delivers any other Security Documents, security arrangements in each case, relation to the Obligations) to the extent required under Section 10.10;
Sections 9.11 or 9.12, as applicable; provided, that the requirements of this subclause (By) after giving effect shall not apply to an aggregate amount at any time outstanding of up to (and including) the incurrence amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) in respect of any such Indebtedness, to such acquisition Indebtedness incurred on and to any related pro forma adjustmentafter the Closing Date, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day aggregate amount of such Test Period;
Indebtedness incurred in reliance on this clause (Ck)(i) other than any subject to the Guarantee and Collateral Exception amount pursuant to the provisos above in this clause (k)(i), does not exceed $450,000,000 at any time outstanding and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided, that (x) the maturity principal amount of any such Indebtedness is not earlier thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and no mandatory repayment (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted hereunder;
(l) Indebtedness of Restricted Foreign Subsidiaries existing as of the Closing Date and any refinancing, refunding, renewal or redemption extension thereof; provided, that the principal amount thereof is not increased above the principal amount thereof outstanding as of the Closing Date and (other than customary change ii) Indebtedness of control or asset sale offers or upon any event of default) is required prior to, 91 days Restricted Foreign Subsidiaries incurred after the Maturity Closing Date (determined in an aggregate amount at the any time of issuance or incurrence); andoutstanding not to exceed $150,000,000;
(Dm) Indebtedness incurred in connection with any Permitted Sale Leaseback and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided, that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not guaranteed increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(n) Permitted Other Indebtedness incurred after the Closing Date, the proceeds of which are substantially simultaneously applied to prepay the Term Loans or New Term Loans (and which may be applied to Classes of Term Loans and New Term Loans consistent with the penultimate sentence of the first paragraph of Section 5.1) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in sub-clause (i) above; provided, that in the case of any such refinancing, refunding, renewal or extension relating to Indebtedness under sub-clause (i) at any time, (x) the principal amount thereof is not increased above the principal amount thereof outstanding as of such time, (y) the direct and contingent obligors with respect to such Indebtedness are not changed and (z) such refinancing, refunding, renewal or extension Indebtedness would constitute Permitted Other Indebtedness under the definition thereof;
(o) Permitted Other Indebtedness in an aggregate amount at any time that, when taken together with New Term Loan Commitments and New Revolving Loan Commitments incurred pursuant to Section 2.14 and outstanding at such time, does not exceed the amount permitted to be incurred and outstanding at such time pursuant to Section 2.14 and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in sub-clause (i) above; provided, that in the case of any such refinancing, refunding, renewal or extension relating to Indebtedness under sub-clause (i) at any time, (x) the principal amount thereof is not increased above the principal amount thereof outstanding as of such time, (y) the direct and contingent obligors with respect to such Indebtedness are not changed and (z) such refinancing, refunding, renewal or extension Indebtedness would constitute Permitted Other Indebtedness under the definition thereof;
(p) the incurrence by the Borrower or any Restricted Subsidiary Guarantor except of Indebtedness represented by letters of credit, bank guarantees or other similar instruments; provided, that such Indebtedness shall not exceed $50,000,000 in the aggregate at any time outstanding;
(q) other Indebtedness incurred by the Borrower in an aggregate amount not to exceed $250,000,000 at any time outstanding and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in sub-clause (i) above; provided, that in the case of any such refinancing, refunding, renewal or extension relating to Indebtedness under sub-clause (i) at any time, the principal amount thereof is not increased above the principal amount thereof outstanding as of such time; and
(r) Permitted Other Indebtedness that is (i) unsecured or (ii) is secured by Liens ranking junior to the extent permitted under Section 11.5;Liens on the Collateral securing the Obligations; provided that, upon the incurrence of any Permitted Other Indebtedness pursuant to this subsection (r), the Fixed Charge Coverage Ratio shall be no less than 2.50:1.00.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the followingforegoing, the limitations set forth in the immediately preceding paragraph shall not apply to any of the following items:
(a) Indebtedness arising under the Credit DocumentsDocuments (including the 2016 Incremental Term Loans, the New Revolving Credit Commitments pursuant to the 2016 Incremental Amendment, the 2018 Incremental Term Loans, the 2019 Incremental Term Loans, the New Revolving Credit Commitments pursuant to the Seventh Amendment, the Eighth Amendment, the Ninth Amendment, the Eleventh Amendment and the Twelfth Amendment and any other Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(b) subject to compliance with Section 10.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued Borrower or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and the Intercompany Subordinated Note 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of construction and restoration activities and 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 claimsclaims and similar obligations);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e10.1(d) 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 Indebtedness, and (B) no guarantee the aggregate amount of Guarantee Obligations incurred by any Restricted Subsidiaries that are not Subsidiary of any Permitted Additional Debt (or Indebtedness Guarantors under this clause (bd), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Sections 10.1(k) aboveand 10.1(ii), shall not exceed the greater of (x) shall be permitted unless such Restricted Subsidiary shall have also provided $300,000,000 and (y) 17.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a guarantee Pro Forma Basis) at the time of the Obligations substantially on the terms set forth incurrence or issuance, in the Guaranteeeach case at any time outstanding;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business (including in respect of construction or restoration activities) in respect of obligations of (or to) suppliers, customers, franchisees, lessorslessors and licensees, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(ivSection 10.5 (other than Investments permitted by Section 10.5(l) by reference to Section 10.1 and Section 10.5(q), ); provided that this clause (viii), (xv), (xviii) shall not be construed to limit the requirements of Section 10.1(b) and (xvii);
(id) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 contemplated by the Borrower or any Restricted Subsidiary, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test PeriodPlan;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Sources: Credit Agreement (Vistra Corp.)
Limitation on Indebtedness. The (a) Holdings, the Borrower and the Canadian Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness arising under the Credit Documents;
(bii) Indebtedness of (including Guarantee Obligations thereunderx) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued Holdings or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (y) subject to compliance with Section 10.5(g), any Restricted Subsidiary to Holdings, the Borrower or its any other Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(diii) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(eiv) except as provided in clauses (x) and (xi) below, subject to compliance with Section 11.510.5(g), Guarantee Obligations incurred by (ix) Restricted Subsidiaries in respect of Indebtedness of Holdings, the Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement Agreement, (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (iiy) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement and (z) any Foreign Subsidiary in respect of Indebtedness of any other Foreign Subsidiary that is permitted to be incurred under this Agreement; , provided that (A) if no Guarantee in respect of the Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligations, Senior Subordinated Notes or Permitted Additional Notes shall be permitted unless such Guarantee Obligations shall be is made by a Guarantor and such Guarantee is unsecured and subordinated to the Guarantee by such Guarantor 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 of any Senior Subordinated Notes or Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeNotes;
(fv) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(ivi) (x) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.11, (iiy) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (z) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each of the foregoing subclauses (ix) and (iiy) above, provided, that the aggregate amount of Indebtedness incurred pursuant to this subclause (z) shall not exceed $35,000,000 at any time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (x), (y) or (z) above, provided that the Borrower shall principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, plus the amount of any interest, premiums or penalties required to be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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); paid thereon plus fees and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtednessexpenses associated therewith;
(hvii) Indebtedness outstanding on the Funding Date date hereof (other than the Existing Opco Notes) and listed on Schedule 11.1 10.1 and any Permitted Refinancing refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, plus the amount of any interest, premiums or penalties required to be paid thereon plus fees and expenses associated therewith, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness issued or incurred to Refinance such Indebtednessare not changed;
(iviii) Indebtedness in respect of Hedge Agreements;
(ix) Indebtedness in respect of the Senior Subordinated Notes in an aggregate principal amount not to exceed $500,000,000 (or such lesser aggregate principal amount as may be incurred on the Closing Date);
(A) 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 Funding Closing Date as the result of a Permitted Acquisition; , provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than by any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),
, (Cy) (1) the Stock capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2) such Person executes a supplement to each of the Guarantee, the Security applicable Guarantee Agreement and the Pledge Agreement, applicable Security Agreements (or alternative guarantee and security arrangements in each case relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.10; Sections 9.11 or 9.12, as applicable, provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any time outstanding of up to (and including) the Guarantee and Collateral Exception Amount at such time of the aggregate of (I) such Indebtedness and (II) all Indebtedness as to which the proviso to clause (xi)(A)(y) below then applies, and (B) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (A) above, provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, plus the amount of any interest, premiums or penalties required to be paid thereon plus fees and expenses associated therewith, and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(xi) (A) Indebtedness of the type that could have been incurred under Section 11.1(g), and
Borrower or any Restricted Subsidiary (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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) including any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(jAdditional Notes) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:, provided
(A) (1) the Stock Borrower pledges the capital stock of the such acquired Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2) such acquired Person executes a supplement to each of the Guarantee, the Security applicable Guarantee Agreement and the Pledge Agreement applicable Security Agreements (or alternative guarantee and delivers any other Security Documents, security arrangements in each case, relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.10;
Sections 9.11 or 9.12, as applicable, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (I) such Indebtedness and (II) all Indebtedness as to which the proviso to clause (x)(A)(y) above then applies, and (B) after giving effect to the incurrence any refinancing, refunding, renewal or extension 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 Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test Period;
provided that (Cx) the maturity principal amount of any such Indebtedness is not earlier thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, plus the amount of any interest, premiums or penalties required to be paid thereon plus fees and expenses associated therewith, and no mandatory repayment (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted hereunder;
(xii) 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, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(A) additional Indebtedness and (B) any refinancing, refunding, renewal or redemption extension of any Indebtedness specified in subclause (A) above; provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (xiii) shall not at any time exceed $100,000,000; provided, however, that not more than $35,000,000 in aggregate principal amount of Indebtedness of the Borrower or any Restricted Subsidiary (other than customary change a Restricted Foreign Subsidiary) incurred under this clause (xiii) shall be secured;
(xiv) Indebtedness in respect of control or asset sale offers or upon any event of default) is required prior toPermitted Additional Notes to the extent that the Net Cash Proceeds therefrom are, 91 days immediately after the Maturity Date (determined at receipt thereof, applied to the time prepayment of issuance or incurrence)Term Loans in accordance with Section 5.2; and
(Dxv) such Indebtedness is not guaranteed amounts owing in any respect by of the Specified Existing Notes prior to the implementation of the Post-Closing Other Tender Procedures in accordance with Section 9.18 and the Unpaid Refinancing Amount for a period of up to 35 days after the Closing Date.
(b) Holdings and the Borrower will not issue any preferred stock or any Subsidiary Guarantor except to the extent permitted under Section 11.5;other preferred equity interests other than Qualified PIK Securities.
Appears in 1 contract
Sources: Credit Agreement (Jostens IH Corp.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Sections 2.16 and 2.17);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness[reserved];
(c) Intercompany loans and advances made by [reserved];
(d) Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its any Restricted Subsidiaries so long as Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agentnot a Guarantor, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesconsequences shall be subordinated to the Obligations pursuant to the Intercompany Note, (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;
(de) Indebtedness in respect of any bankers’ acceptanceacceptances, bank guarantees, letter letters of credit, warehouse receipt receipts or similar facilities instruments entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims); provided that any reimbursement obligations in respect thereof are reimbursed within thirty (30) days following the incurrence thereof;
(ef) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 11.1(e) 10.1(f), guarantee Indebtedness that such Restricted Subsidiary could not otherwise itself incur under this Section 11.110.1) 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 11.1(e10.1(f) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of the Obligations pursuant to a Subordination Agreement 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 of any Permitted Additional Debt (or Indebtedness under clause (bi) above) of this Section 10.1 or other Junior Debt 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;
(fg) Guarantee Obligations (i) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvij), (q) and (xviit);
(h) (i) Indebtedness (including Indebtedness arising under Capital Capitalized Leases) incurred prior to or within 270 365 days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) to finance the acquisition, construction, lease, repair, replacement replacement, expansion, or improvement of such fixed or capital assetsassets (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of installation and the beginning of the full productive use of such asset); (ii) Indebtedness arising under Capital Capitalized Leases, other than (A) Capital Capitalized Leases in effect on the Funding Closing Date and (B) Capital Capitalized 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 Covenants, as such covenants are 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)above; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness; provided, that the aggregate principal amount of Indebtedness permitted by subclauses (i), (ii) and (iii) of this Section 10.1(h) shall not exceed the greater of $20,000,000 and 3.5% of the Borrowing Base at the time of incurrence;
(hi) Indebtedness outstanding on the Funding Date listed date hereof and set forth on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(ij) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(k) Indebtedness of a Person the Borrower (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness) (x) incurred in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 in an aggregate principal amount of Indebtedness attaching outstanding at any time pursuant to this clause (x) not to exceed the assets greater of a Person that$20,000,000 and 3.5% of the Borrowing Base or (y) assumed in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 so long as, in either casethe case of Indebtedness assumed pursuant to clause (y) hereof, becomes a Restricted Subsidiary (such Indebtedness is not incurred in contemplation of such Permitted Acquisition 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 Funding Date as the result of a Permitted Acquisitionsimilar Investment; provided that:
that (A) immediately after giving Pro Forma Effect to such Permitted Acquisition or similar Investment and the incurrence or assumption of such Indebtedness, the Borrower shall be in compliance with the Financial Performance Covenants on a Pro Forma Basis and (B)(I) in the case of any such Indebtedness existed secured by a Lien that is junior to the Lien securing the Obligations, the Borrowing Base shall be adjusted to the extent required by Section 2.14(e), and (II) in the case of any such secured Indebtedness assumed pursuant to clause (y) hereof, the holders of such Indebtedness have no recourse to property other than the property so acquired and the property so acquired shall not constitute Borrowing Base Properties; provided, further that in the case of Indebtedness incurred or assumed pursuant to clauses (x) and (y) hereof or any applicable Permitted Refinancing Indebtedness, any such Indebtedness shall have a maturity date that is after the Latest Maturity Date at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(B) such Indebtedness is incurred or assumed and have a Weighted Average Life to Maturity not guaranteed in any respect by shorter than 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 longest remaining Weighted Average Life to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each Maturity of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10Facility; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, still further, that the requirements of this clause (CSection 10.1(k) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(h), and;
(Dl) [reserved];
(m) Indebtedness arising from Permitted Intercompany Activities to the extent constituting an Investment permitted by Section 10.5;
(n) [reserved];
(o) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, and obligations in respect of letters of credit, bank guaranties or instruments related thereto, in each case provided in the ordinary course of business or consistent with past practice or industry practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practice;
(i) other additional Indebtedness, provided that (A) the aggregate principal amount of Indebtedness outstanding at any time pursuant to this Section 10.1(p) shall not at the time of incurrence thereof and immediately after giving effect thereto and the use of proceeds thereof on a Pro Forma Basis exceed the greater of $20,000,000 and 3.5% of the Borrowing Base at the time of incurrence and (B) immediately after giving effect to the assumption incurrence or issuance thereof and the use of any such Indebtednessproceeds therefrom, to such acquisition and to any related pro forma adjustment, (I) the Borrower shall be in compliance on a pro forma basis with the Financial Performance CovenantsCovenants on a Pro Forma Basis, as such covenants are recomputed as at the last day (II) no Default or Event of the most recently ended Test Period as if such assumption Default shall have occurred and acquisition had occurred on the first day of such Test Period;
be continuing and (III) no Borrowing Base Deficiency shall result therefrom and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(jq) Indebtedness in respect of (i) Indebtedness incurred to finance a unsecured senior, senior subordinated or subordinated Permitted AcquisitionAdditional Debt; provided that:
that (Ax) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) immediately after giving effect to the incurrence or issuance thereof and the use of any such Indebtednessproceeds therefrom, to such acquisition and to any related pro forma adjustment, (A) the Borrower shall be in compliance on a pro forma basis with the Financial Performance CovenantsCovenants on a Pro Forma Basis, as (B) no Default or Event of Default shall have occurred and be continuing and (C) no Borrowing Base Deficiency shall result therefrom, (y) the Borrowing Base shall be adjusted to the extent required by Section 2.14(e) and (z) to the extent such covenant are recomputed as at Indebtedness is expressly subordinated in right of payment to the last day of the most recently ended Test Period as if Obligations, such incurrence Indebtedness shall be subject to a Subordination Agreement, and acquisition had occurred on the first day of (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Test PeriodIndebtedness;
(Cr) Cash Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements;
(s) 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;
(t) 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 assumed or entered into in connection with the Transactions or other Investments permitted by Section 10.5 and the Disposition of any business, assets or Equity Interests not prohibited hereunder;
(u) Indebtedness of the Borrower or any Restricted Subsidiary consisting of obligations to pay insurance premiums;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower or, to the extent attributable to the ownership or operation of the Borrower and its Subsidiaries and the Restricted Subsidiaries incurred in the ordinary course of business or consistent with past practice or industry practice;
(w) 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 or any other Investment permitted hereunder;
(x) Indebtedness associated with bonds or surety obligations required by Requirements of Law or by Governmental Authorities in connection with the operation of Oil and Gas Properties in the ordinary course of business;
(y) Indebtedness in respect of (i) Junior Lien Permitted Additional Debt in an amount not to exceed the lesser of (I) $50,000,000 and (II) 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 amount that would cause the Maturity Date (determined Consolidated Secured Net Leverage Ratio to exceed 3.00 to 1.00 at the time of incurrence of such Junior Lien Permitted Additional Debt on a Pro Forma Basis; provided that (x) immediately after giving effect to the incurrence or issuance thereof and the use of proceeds therefrom, (A) the Borrower shall be in compliance with the Financial Performance Covenants on a Pro Forma Basis, (B) no Default or incurrence); and
Event of Default shall have occurred and be continuing and (DC) no Borrowing Base Deficiency shall result therefrom, (y) the Borrowing Base shall be adjusted to the extent required by Section 2.14(e) and (z) such Indebtedness is not guaranteed in shall be subject to a Junior Lien Intercreditor Agreement, and (ii) any respect Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(z) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary Guarantor except to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the purchase or redemption of Equity Interests of the Borrower permitted by Section 10.6;
(aa) [reserved];
(bb) [reserved];
(cc) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit; and
(dd) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (cc) above. For purposes of determining compliance with Section 10.1, in the event that an item of Indebtedness (or any portion thereof) at any time, whether at the time of incurrence or issuance or upon the application of all or a portion of the proceeds thereof or subsequently, meets the criteria of more than one of the categories of permitted Indebtedness described in Section 10.1(a) through (dd) above, the Borrower, in its sole discretion, will classify and may subsequently reclassify such item of Indebtedness (or any portion thereof) in any one or more of the types of Indebtedness described in Section 10.1(a) through (dd) and will only be required to include the amount and type of such Indebtedness in such of the above clauses as determined by the Borrower at such time. The Borrower will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described in clauses 10.1(a) through (dd) of Section 10.1 above. The accrual of interest or dividends, the 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 of the same class, accretion or amortization of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies, will, in each case, not be deemed to be an incurrence of Indebtedness for purposes of this Section 10.1. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness or Disqualified Stock, as applicable, being refinanced, shall be calculated based on the currency exchange rate applicable to the extent permitted under Section 11.5;currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the 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. The Borrower will not, and will not permit any of the its Restricted Subsidiaries to, to create, incur, assume issue, assume, guarantee or suffer otherwise become liable, contingently or otherwise (collectively, “incur” and collectively, an “incurrence”) with respect to exist any Indebtedness other than (including Acquired Indebtedness), except that the following:
foregoing limitations will not apply to: (a) Indebtedness arising under the Credit Documents;
; (b) Date listed (i) Indebtedness (including Guarantee Obligations thereunderany unused commitment) in respect of outstanding on the Senior Notes Closing on Schedule 10.1 and (ii) intercompany Indebtedness (including any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with unused commitment) outstanding on the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
Closing Date listed on Schedule 10.1; (c) Intercompany loans and advances made by Indebtedness (including Capitalized Lease Obligations) to finance the purchase, lease, construction, installation, maintenance, replacement or improvement of property (real or personal) or equipment that is used or useful in the business of the Borrower to or any Restricted Subsidiary or made by 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 obligations of the Borrower or any Restricted Subsidiary under or pursuant to any “synthetic lease” transactions to on-balance sheet Indebtedness of the Borrower or its such Restricted Subsidiaries so long as such Subsidiary, in an aggregate principal amount which, when aggregated with the principal amount of all other Indebtedness is evidenced by an intercompany note then outstanding and subject incurred pursuant to subordination terms acceptable this clause (c) and all Refinancing Indebtedness incurred to the Administrative Agent, refinance any other Indebtedness incurred pursuant to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
this clause (d) Indebtedness in respect of any bankers’ acceptance), bank guarantees, does not exceed $20.0 million; (d)Indebtedness (including letter of credit, warehouse receipt or similar facilities entered into credit obligations consistent with past practice constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business (including business), in respect of workers workers’ compensation claims, deferred compensation, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-reimbursement or indemnification type obligations regarding workers workers’ compensation claims);
, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance; (e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness arising from agreements of the 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 notproviding for indemnification, by virtue adjustment of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e) is subordinated to the Obligationspurchase price, 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 of any Permitted Additional Debt (earnout or Indebtedness under clause (b) 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) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired andsimilar obligations, in each case, was not created incurred or assumed in anticipation thereof,
(B) such connection with the acquisition or disposition of any business, assets or a Subsidiary or other Person, other than guarantees of Indebtedness is not guaranteed in incurred by any respect by the Borrower Person acquiring all 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 portion of such Person is pledged to business, assets or a Subsidiary for the Administrative Agent to the extent required under Section 10.10(cpurpose of financing such acquisition; (f) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10[reserved]; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;-127-#89847286v15
Appears in 1 contract
Limitation on Indebtedness. (a) The Borrower and the Parent Guarantors will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness arising under the Credit Documents;
(bii) Indebtedness of (including Guarantee Obligations thereunderx) in respect the Borrower or any of the Senior Notes and Parent Guarantors to the Borrower, any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with of the foregoing and Parent Guarantors or any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by Subsidiary of the Borrower (including, without limitation, the Permitted Intercompany Indebtedness) and (y) subject to any Restricted Subsidiary or made by compliance with Section 10.5(g), any Restricted Subsidiary to the Borrower or its any of the Parent Guarantors or any other Restricted Subsidiaries so long as Subsidiary of the Borrower; provided that (A) all such Indebtedness is evidenced by owing to a Credit Party shall be subject to a perfected, First Priority Lien pursuant to the Pledge Agreement, and (B) all such Indebtedness shall be unsecured and, if constituting an obligation of a Credit Party, subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of any applicable promissory notes or an intercompany note subordination agreement on terms and subject to subordination terms acceptable conditions no less favorable to the Lenders than the terms and conditions set forth in the Loan and Reimbursement Agreement (as in effect on the date hereof) or otherwise in a manner reasonably satisfactory to Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(diii) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(eiv) except as provided in clauses (x), (xi) and (xiii) below, subject to compliance with Section 11.510.5(g), Guarantee Obligations incurred by (ix) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement Agreement, (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (iiy) the Borrower or any of the Parent Guarantors in respect of Indebtedness of the Borrower or the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided Agreement and (z) any Foreign Subsidiary in respect of Indebtedness of any other Foreign Subsidiary that (A) if the Indebtedness being guaranteed is permitted to be incurred under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeAgreement;
(fv) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(ivi) (w) Indebtedness of the Borrower or the Restricted Subsidiaries (including Indebtedness arising under Capital LeasesLeases but excluding Indebtedness incurred in connection with Permitted Acquisitions) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets subject to pro forma compliance with Section 10.9, (iix) Indebtedness of the Borrower or the Restricted Subsidiaries arising under Capital Leases entered into in connection with Permitted Sale Leasebacks, (y) Indebtedness of the Borrower or the Restricted Subsidiaries arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each of the foregoing subclauses (iw) and (ii)x) above; provided, that the Borrower aggregate amount of Indebtedness incurred pursuant to this subclause (y) shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenantsnot exceed $40,000,000 at any time outstanding, as such covenants are 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 (iiiz) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(ivii) (A) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and (B) any Permitted Refinancing Indebtedness incurred to Refinance (in whole or in part) such Indebtedness;
(viii) Indebtedness in respect of Hedge Agreements;
(A) Indebtedness under the Senior Unsecured Notes, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness and (B) Indebtedness under the Senior Subordinated Notes, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(x) (A) 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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
that (Aw) before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (x) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,existed
(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 Capital Stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2) such Person executes a supplement to each of the Guarantee, the Security Guarantee Agreement and the Pledge Agreement, applicable Security Documents (or alternative guarantee and security arrangements in each case relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 CovenantsSections 9.11 or 9.12, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption applicable, and acquisition had occurred on the first day of such Test Period;
(iiB) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(jxi) (iA) Indebtedness of the Borrower or any Restricted Subsidiary issued or incurred to finance a Permitted Acquisition; provided that:
that (A) (1u) the Stock Total Leverage Ratio on a Pro Forma Basis as of the Person acquired is pledged date of such Permitted Acquisition (but excluding any cash or cash equivalents constituting proceeds of such Indebtedness which may otherwise reduce the amount of Consolidated Net Debt for such purpose), shall be less than 6.50 to 1.00, as certified by a certificate from the Administrative Agent to the extent required under Section 10.10(cChief Financial Officer or Treasurer (or other equivalent officer) and (2) such Person executes a supplement to each of the GuaranteeBorrower demonstrating such compliance in reasonable detail, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(Bv) 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 compliance, on a pro forma basis Pro Forma Basis, with the Financial Performance CovenantsCovenant, as such covenant are is recomputed as at the last day of the most recently ended recent Test Period for which Section 9.1 Financials have been delivered, as if such incurrence and acquisition had occurred on the first day of such Test Period;
, as certified by a certificate from the Chief Financial Officer or Treasurer (Cor other equivalent officer) of the maturity of Borrower demonstrating such Indebtedness is not earlier thancompliance in reasonable detail, 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 Maturity Date (determined at the time of issuance or incurrence); and
(Dw) such Indebtedness is not guaranteed in any respect by any Parent Guarantor or any Restricted Subsidiary unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor substantially concurrently with the incurrence of such Indebtedness or guarantee), (x)(1) the Parent Guarantor, the Borrower or such other relevant Credit Party pledges the Capital Stock of any Person acquired (the “acquired Person”) to the Administrative Agent to the extent required under Section 9.12 and (2) such acquired Person executes a supplement to the applicable Guarantee Agreement and the applicable Security Agreements (or alternative guarantee and security arrangements in relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Sections 9.11 or 9.12, as applicable; provided that the requirements of this subclause (x) shall not apply to an aggregate amount at any time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (I) such Indebtedness and (II) all other Indebtedness as to which this proviso then applies, (y) such Indebtedness (other than any such Indebtedness constituting Permitted Secured Acquisition Debt) does not have a maturity or have scheduled amortization or payments of principal and is not subject to mandatory redemption or prepayment (except customary asset sale or change of control provisions which allow for the payment of the Obligations prior to such Indebtedness), in each case, prior to six months following the Latest Maturity Date at the time of incurrence of such Indebtedness and will not have a shorter Weighted Average Life to Maturity than the Weighted Average Life to Maturity of any then outstanding Loans, and (z) to the extent such Indebtedness is secured pursuant to Section 10.2(h), (1) the Senior Secured Leverage Ratio, on a Pro Forma Basis as of the date of such Permitted Acquisition, shall not exceed 4.25 to 1.00, as certified by a certificate from the Chief Financial Officer or Treasurer (or other equivalent officer) of the Borrower demonstrating such compliance in reasonable detail and (2) to the extent the Liens securing such Indebtedness are on any assets constituting Collateral, such Indebtedness shall be Permitted Secured Acquisition Debt, and (B) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided further that if such Indebtedness constitutes Permitted Secured Acquisition Debt and the provisions of clause (b) of the definition of Permitted Secured Acquisition Debt are applicable (or Permitted Refinancing Indebtedness in respect thereof), then the applicable margins on the relevant Term Loans described therein shall be increased as provided therein concurrently with the incurrence of such Permitted Secured Acquisition Debt (or Permitted Refinancing Indebtedness in respect thereof);
(xii) Indebtedness in respect of bids, trade contracts (other than for debt for borrowed money), leases (other than Capital Lease Obligations), statutory obligations, surety, bid, stay, customs and appeal bonds, performance, performance and completion and return of money bonds, government contracts, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business (including letters of credit, bank guarantees or similar instruments in lieu of such items to support the issuance thereof);
(xiii) Permitted Additional Junior Debt in an amount not to exceed (i) $35,000,000 plus (ii) any such additional amount so long as (x) the Total Leverage Ratio shall be less than 6.50 to 1.00, determined on a Pro Forma Basis as of the date of incurrence of such Permitted Additional Junior Debt (but excluding any cash or cash equivalents constituting proceeds of such Indebtedness which may otherwise reduce the amount of Consolidated Net Debt for such purpose), and (y) if such Indebtedness is secured on a junior lien, lien subordinated basis with respect to the Obligations, the Senior Secured Leverage Ratio shall be less than 4.25 to 1.00, determined on a Pro Forma Basis as of the date of incurrence of such Permitted Additional Junior Debt (but excluding any cash or cash equivalents constituting proceeds of such Indebtedness which may otherwise reduce the amount of Consolidated Net Debt for such purpose), in each case, as if any such Indebtedness had been outstanding and fully borrowed, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(xiv) Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets (including Capital Stock of Subsidiaries) of the Borrower or any Subsidiary Guarantor except permitted by Section 10.5, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business or assets for the purpose of financing such acquisition;
(xv) Indebtedness consisting of promissory notes issued by the Borrower and its Restricted Subsidiaries to current or former directors, officers, employees, members of management or consultants of such person (or their respective estate, heirs, family members, spouse or former spouse) to finance the purchase or redemption of Capital Stock of Parent or any direct or indirect parent thereof permitted by Section 10.6(b);
(xvi) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protection and similar arrangements, in each case, in connection with cash management and deposit accounts;
(xvii) 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;
(xviii) Indebtedness in respect of letters of credit, bankers’ acceptances supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(xix) without duplication of any other Indebtedness, non-cash accruals of interest, accretion or amortization of original issue discount and/or pay-in-kind interest to the extent such Indebtedness is permitted under Section 11.5hereunder;
(xx) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xix);
(xxi) Indebtedness of the Borrower or any Restricted Subsidiary that is unsecured or Indebtedness of a Restricted Foreign Subsidiary that is secured solely by property of Restricted Foreign Subsidiaries in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; and
(xxii) Credit Agreement Refinancing Indebtedness.
(b) Neither the Borrower nor any Parent Guarantor will issue any preferred Capital Stock other than Qualified PIK Securities. The Borrower will not permit any Restricted Subsidiary to issue any preferred Capital Stock to any Person other than the Borrower or the Subsidiary Guarantors (or, in the case of a Restricted Subsidiary not directly owned by the Borrower or a Subsidiary Guarantor, to another Restricted Subsidiary) other than Qualified PIK Securities.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and it will not cause or permit any of the Restricted its Subsidiaries to, create, incur, assume incur or suffer to exist be obligated on any Indebtedness other than than: (i) the following:
Secured Obligations; (ii) Indebtedness relating to employee benefit plans; (iii) Indebtedness described in clause (a) Indebtedness arising under the Credit Documents;
or (b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness;
defined term Restricted Investment; (c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(div) Indebtedness in respect of taxes, assessments, governmental charges or levies and claims for labor, materials and supplies to the extent that payment therefor shall not at the time be required to be made in accordance with the provisions of Section 5.02(d) or Section 5.02(e); (v) Indebtedness in respect of judgments or awards that have been in force for less than the applicable period for taking an appeal and for which adequate provision as determined in accordance with GAAP has been made so long as execution is not levied thereunder and in respect of which Borrower or any bankers’ acceptanceSubsidiary shall at the time in good faith be prosecuting an appeal or proceedings for review and a suspensive appeal bond in the full amount of such judgment or award shall have been obtained by Borrower or such Subsidiary with respect thereto; (vi) current liabilities of Borrower or any Subsidiary incurred in the ordinary course of business not incurred through (A) the borrowing of money, bank guaranteesor (B) the obtaining of credit except for credit on an open account basis customarily extended and in fact extended in connection with normal purchases of goods and services; (vii) endorsements for collection, letter deposits or negotiation and warranties of creditproducts or services, warehouse receipt in each case incurred in the ordinary course of business; (viii) Indebtedness in respect of performance, surety or similar facilities appeal bonds obtained in the ordinary course of Borrower's or any Subsidiary's business; (ix) Indebtedness for any permitted declared and unpaid distributions on Borrower's stock; (x) indebtedness under any Interest Rate Protection Agreements (as defined in the Credit Agreement) consented to by Bank; (xi) Indebtedness relating to the MIDNIGHT WRANGLER in a principal amount not exceeding $15,000,000.00 in the aggregate at any one time outstanding; (xii) Indebtedness relating to the MIDNIGHT EAGLE in a principal amount not exceeding $12,000,000.00 in the aggregate at any one time outstanding; (xiii) other Indebtedness in a principal amount not to exceed $8,00,000.00 in the aggregate at any one time outstanding; (xiv) Indebtedness under the Credit Agreement; (xv) the guaranty by Borrower of the obligations of Torch Express, L.L.C. under any Conversion Contract (as defined in the Credit Agreement);(xvi) guarantees by Borrower of the performance of contracts by Subsidiaries entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) any Subordinate Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed as defined in the Credit Agreement).
9. In connection with the foregoing and only in connection withwith the foregoing, the acquisitionLoan Agreement is hereby amended, 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, but in all other than (A) Capital Leases in effect on the Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each respects all of the foregoing subclauses (iterms, conditions and provisions of the Loan Agreement remain unaffected. All security agreements, financing statements, mortgages, pledges, continuing guaranties and other security documents in favor of Bank shall remain in full force and effect.
10. Except as may be specifically set forth herein, this Waiver and Fifth Amendment to Amended and Restated Loan Agreement shall not constitute a waiver of any Default(s) under the Loan Agreement or any documents executed in connection therewith, all rights and (ii)remedies of Bank being preserved and maintained.
11. This Waiver and Fifth Amendment to Amended and Restated Loan Agreement may be executed in two or more counterparts, and it shall not be necessary that the Borrower signatures of all parties hereto be contained on any one counterpart hereof; each counterpart shall be in compliance on a pro forma basis after giving effect to the incurrence deemed an original, but all of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement which together shall constitute one and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;same instrument.
Appears in 1 contract
Sources: Loan Agreement (Torch Offshore Inc)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the followingforegoing, the limitations set forth in the immediately preceding paragraph shall not apply to any of the following items:
(a) Indebtedness arising under the Credit DocumentsDocuments (including the 2016 Incremental Term Loans, the New Revolving Credit Commitments pursuant to the 2016 Incremental Amendment, the 2018 Incremental Term Loans, the 2019 Incremental Term Loans, the New Revolving Credit Commitments pursuant to the Seventh Amendment, the Eighth Amendment and, the Ninth Amendment and the Eleventh Amendment and any other Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(b) subject to compliance with Section 10.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued Borrower or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and the Intercompany Subordinated Note 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of construction and restoration activities and 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 claimsclaims and similar obligations);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e10.1(d) 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 Indebtedness, and (B) no guarantee the aggregate amount of Guarantee Obligations incurred by any Restricted Subsidiaries that are not Subsidiary of any Permitted Additional Debt (or Indebtedness Guarantors under this clause (bd), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Sections 10.1(k) aboveand 10.1(ii), shall not exceed the greater of (x) shall be permitted unless such Restricted Subsidiary shall have also provided $300,000,000 and (y) 17.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a guarantee Pro Forma Basis) at the time of the Obligations substantially on the terms set forth incurrence or issuance, in the Guaranteeeach case at any time outstanding;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business (including in respect of construction or restoration activities) in respect of obligations of (or to) suppliers, customers, franchisees, lessorslessors and licensees, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(ivSection 10.5 (other than Investments permitted by Section 10.5(l) by reference to Section 10.1 and Section 10.5(q), ); provided that this clause (viii), (xv), (xviii) shall not be construed to limit the requirements of Section 10.1(b) and (xviid);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 contemplated by the Borrower Plan or any Restricted Subsidiary, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(Aiv) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of by the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(g), and
(D) after giving effect to the assumption terms of any such Indebtedness, to such acquisition and to Reference Indenture or any related pro forma adjustment, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) documentation governing any Reference Indenture Permitted Refinancing Indebtedness thereof, incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or and the Subsidiary Guarantors in respect of Indebtedness and other obligations under the Reference Indentures, any Subsidiary Guarantor except to the extent permitted under Section 11.5related notes and/or any Reference Indenture Permitted Refinancing thereof;;
Appears in 1 contract
Sources: Credit Agreement (Vistra Corp.)
Limitation on Indebtedness. The Borrower (A) Holdings will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit DocumentsLoan Documents and any Permitted Senior Subordinated Bridge Refinancing thereof (including for the avoidance of doubt the Exchange Notes);
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect any Loan Party to another Loan Party, (ii) of the Senior Notes any Non-Subsidiary Loan Party to any other Non-Subsidiary Loan Party and (iii) subject to Section 6.05(g), Indebtedness of any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and Non-Subsidiary Loan Party to any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessLoan Party;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guaranteesacceptance (other than a bankers’ acceptance issued in respect of borrowed money), letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) except as provided in clauses (j) and (k) below, subject to compliance with Section 11.56.05(g), Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower Holdings 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower Holdings in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) if by any Restricted Subsidiary that is not a Guarantor of any Indebtedness of a Borrower or any Guarantor and (b) in respect of Indebtedness under the Senior Secured Credit Facilities or the Senior Bridge Loan Facility (or Permitted Senior Refinancings thereof) unless such Guarantee is made by a Guarantor and provided further that in the event such Guarantee Obligations are incurred in respect of Senior Subordinated Indebtedness being guaranteed under this Section 11.1(e) is subordinated or Guarantor Senior Subordinated Indebtedness, then such Guarantee Obligations shall rank equally or junior in right of payment to the ObligationsObligations and if such Guarantee Obligations are incurred in respect of Subordinated Indebtedness, then such Guarantee Obligations shall be subordinated to the Guarantee right of payment 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 Guaranteesame extent;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, before or assumed in connection with, after the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures (it being understood that the Canadian Borrower may determine in good faith the purpose for which Indebtedness was incurred), (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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 Covenants, as such covenants are 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 refinancing, refunding, renewal or extension of any Indebtedness issued under this clause (f), provided that the principal amount thereof (not including any reasonable prepayment premiums, fees, costs and expenses)) is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder; provided that the aggregate amount of Indebtedness incurred pursuant to Refinance this clause (f) shall not exceed $100.0 million at any time outstanding;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 6.01 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof (not including any reasonable prepayment premiums, fees, costs and expenses) is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness in respect of Swap Agreements entered into for bona fide (non-speculative) business purposes;
(i) the incurrence of Indebtedness under Senior Secured Credit Facilities by Holdings or any of the Restricted Subsidiaries 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), up to an aggregate principal amount of $2,550.0 million outstanding at any one time, less the aggregate of all principal prepayments made in respect of the Senior Secured Credit Facilities made in respect of Asset Sale Events or Casualty Events; provided that the amount available under this clause (i) shall reduce on the Funding date that is the twelve month anniversary of the Closing Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred by the amount, if any, of the $150.0 million Delayed Draw Senior Secured Term Loan B Facility of the Senior Secured Credit Facilities which is undrawn as of such date (but only to Refinance the extent of such Indebtednessundrawn amount);
(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 Holdings or any Restricted Subsidiary, in each case after the Funding Closing Date as the result of a Permitted Acquisition; Acquisition in an aggregate amount (together with amounts pursuant to clause (ii) below) not to exceed $200.0 million at any time outstanding, provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower Holdings or any Restricted Subsidiary (other than by any such Person 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 Administrative Agent to the extent required under Section 10.10(cSubsidiary) and (2y) such Person executes a supplement to each of this Agreement (or alternative guarantee arrangements in relation to the GuaranteeObligations reasonably acceptable to the Administrative Agent, the Security Agreement and the Pledge Agreement, in each case as applicable) to the extent required under Section 10.10; 5.10, provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any Indebtedness time outstanding of up to (and including) the Guarantee Exception Amount at such time of the type that could have been incurred under Section 11.1(g)aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness incurred specified in subclause (i) above, provided that, except to Refinance the extent otherwise permitted hereunder, (x) the principal amount of any such IndebtednessIndebtedness is not increased above the principal amount thereof outstanding (not including any reasonable prepayment premiums, fees, costs and expenses) immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(j) (i) Indebtedness of Holdings or any Restricted Subsidiary incurred to finance a Permitted Acquisition; Acquisition in an aggregate principal amount (together with amounts pursuant to clause (ii) below) not to exceed $200.0 million at any time outstanding, provided that:
that (A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(Dx) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (other than any Person acquired (the Borrower “acquired Person”) as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Subsidiary Guarantor Restricted Subsidiary, subject to compliance with Section 6.05(i), by Holdings, and (y) such acquired Person executes a supplement to this Agreement (or alternative guarantee in relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 5.10, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) the amount of the Guarantee Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (ii) any refinancing, refunding, renewal or extension of any such Indebtedness, provided that (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding (not including any reasonable prepayment premiums, fees, costs and expenses) immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted hereunder;
(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, including those incurred to secure health, safety, environmental and regulatory obligations in the ordinary course of business;
(i) Indebtedness incurred in connection with any Permitted Sale Leaseback (provided that the Net Cash Proceeds (other than Net Cash Proceeds from the T10R Sale Leaseback) thereof are promptly applied to the extent required by Section 2.11(e)) and
(ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding (not including any reasonable prepayment premiums, fees, costs and expenses) immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(n) additional Indebtedness; provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (n) shall not at any time exceed $200.0 million at any time outstanding;
(o) Indebtedness in respect of the Senior Bridge Loan Facility (including for the avoidance of doubt the Senior Rollover Loans) in an aggregate principal amount not to exceed $692,825,000 and any Permitted Senior Bridge Refinancings thereof (including for the avoidance of doubt the Senior Exchange Notes);
(p) Indebtedness in respect of the Telesat Notes so long as such Indebtedness is redeemed within 45 days after the Closing Date and the Canadian Borrower retains prior to such time sufficient funds in a segregated account to pay the redemption price therefor;
(q) Indebtedness consisting of Mezzanine Securities issued pursuant to Section 6.12(h)(a); and
(r) (i) up to $500.0 million (together with amounts pursuant to clause (ii) below (other than reasonable prepayment premiums, fees, costs and expenses) of Indebtedness incurred to construct or acquire up to four Satellites (including transponders and including replacement Satellites constructed or acquired to replace Satellites, including existing Satellites), any of which may be pursuant to a condosat transaction, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that the principal amount thereof (not including any reasonable prepayment premiums, fees, costs and expenses) is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension;
(B) The Loan Parties will not issue any Disqualified Capital Stock, except to the extent it is treated as Indebtedness and otherwise permitted under this Section 11.5;6.01.
(C) Holdings and the Restricted Subsidiaries shall not, directly or indirectly, incur any Indebtedness that is or purports to be by its terms (or by the terms of any agreement governing such Indebtedness) senior in right of payment to the Obligations and subordinated in right of payment to any other Indebtedness of Holdings or any Restricted Subsidiary. For purposes of the foregoing, no Indebtedness will be deemed to be subordinated in right of payment to any other Indebtedness of Holdings and/or a Restricted Subsidiary solely by virtue of being unsecured or secured by a junior priority lien or by virtue of the fact that the holders of such Indebtedness have entered into intercreditor agreements or other arrangements giving one or more of such holders priority over the other holders in the collateral held by them.
Appears in 1 contract
Sources: Senior Subordinated Bridge Loan Agreement (Loral Space & Communications Inc.)
Limitation on Indebtedness. The No Borrower will notshall, and will not no Borrower shall suffer or permit any of the Restricted its Subsidiaries to, create, incur, assume assume, permit to exist, or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness other than Indebtedness, except for the following:following (“Permitted Indebtedness”):
(a) Indebtedness arising under the Credit DocumentsObligations;
(b) Indebtedness consisting of Contingent Obligations described in clause (including Guarantee Obligations thereunderj) in respect of the Senior Notes definition of Indebtedness 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 permitted pursuant to Refinance such IndebtednessSection 5.8;
(c) Intercompany loans Indebtedness existing on the Closing Date and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesset forth in Schedule 5.5 including Permitted Refinancings thereof;
(d) Indebtedness in respect incurred to finance the acquisition, construction or improvement of any bankersfixed or capital assets (whether or not constituting purchase money Indebtedness), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and Permitted Refinancings thereof; provided that (i) such Indebtedness is incurred prior to or within 90 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this Section 5.5(d) shall not exceed $100,000 at any time outstanding;
(e) intercompany Indebtedness of (i) subject to Section 5.4, any Borrower to any other Borrower, (ii) any Subsidiary that is not a Borrower to another Subsidiary that is not a Borrower, and (iii) subject to Section 5.4, any Subsidiary that is not a Borrower to any Borrower; provided that any of the foregoing intercompany Indebtedness owed to a Borrower that is evidenced by a tangible promissory note shall be pledged to the Term Agent pursuant to the Security Agreement to the extent required thereunder;
(f) Indebtedness owed to any Person providing workers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of workers compensation claimscompensation, health, disability or other employee benefits or property, casualty or liability insurance insurance, pursuant to reimbursement or self-insurance or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers compensation claims)such person, in each case incurred in the Ordinary Course of Business;
(eg) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of Standard Outdoor SEII owed to the Borrower or other Restricted Subsidiaries that is permitted to be incurred Vista Seller under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this AgreementVista Seller Note; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 aggregate original principal amount of such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Indebtednessnot exceed $3,450,000;
(h) Indebtedness outstanding on of Standard Outdoor SEI owed to the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Quality Seller under the Quality Seller Note; provided that the aggregate original principal amount of such Indebtedness issued or incurred to Refinance such Indebtednessshall not exceed $6,500,000;
(i) unsecured Indebtedness constituting obligations in respect of a Person working capital and purchase price adjustment requirements and indemnification obligations under the Outdoor Acquisition Agreements or Indebtedness attaching to the assets of a Person that, PGI Acquisition Agreement or in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger connection 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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) Earn-Outs and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10Permitted Seller Debt;
(Bk) after giving effect to the incurrence Indebtedness of any such IndebtednessSubsidiary of SDOI that is acquired or formed solely in connection with, or for the purpose of consummating, a Permitted Acquisition that is not financed in whole or in part by any portion of the proceeds of the Delayed Draw Term Loan in excess of the first $5,000,000 thereof or any Incremental Term Loan; provided that once any Borrower becomes a Designated First Lien Borrower, it shall not create, incur, assume, permit to such acquisition and exist, or otherwise become or remain directly or indirectly liable with respect to any related pro forma adjustment, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrenceunder this Section 5.5(k); and
(Dl) Indebtedness of any Person acquired pursuant to a Permitted Acquisition that is assumed in connection therewith; provided that (i) such Indebtedness exists at the time such Permitted Acquisition is consummated and is not guaranteed created in contemplation thereof or in connection therewith, and (ii) the aggregate principal amount of such Indebtedness shall not exceed $100,000 at any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;time outstanding.
Appears in 1 contract
Sources: Term Loan Agreement (Standard Diversified Opportunities Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to any other Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ ' acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.12, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof 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)) above, PROVIDED that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $25,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, PROVIDED that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, PROVIDED that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder, and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on in respect of Hedge Agreements;
(i) Indebtedness in respect of (i) the Funding Date listed on Schedule 11.1 Subordinated Loans and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness(ii) the Subordinated Notes;
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (or is including a Restricted Subsidiary that survives a merger with such Person or any of its Subsidiariesis also an Acquisition Subsidiary) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:Borrower
(A) such Indebtedness existed at the time Borrower pledges the capital stock of such Person became a Restricted Subsidiary or at to the time such assets were acquired andAdministrative Agent to the extent required under Section 9.12, in each case, was not created in anticipation thereof,
(B) such Person executes a supplement to the Guarantee to the extent required under Section 9.11 and (C) if any such Indebtedness is not guaranteed secured, (1) the Guarantee referred to in any respect the preceding subclause (B) is equally and ratably secured or (2) in the case of assets acquired by the Borrower or any Restricted Subsidiary (other than any Acquisition Subsidiary), the Borrower's obligations hereunder or such Person Restricted Subsidiary's Guarantee, as the case may be, are equally and ratably secured, PROVIDED that so becomes a Restricted Subsidiary or is the survivor requirements of a merger with such Person or this subclause (y) shall not apply to an aggregate amount at any time outstanding of its Subsidiaries),
up to (Cand including) $75,000,000 of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the Stock proviso to clause (k)(i)(y) below then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness incurred under clause (k) below, when taken together, does not exceed $150,000,000 in the aggregate at any time outstanding, PROVIDED that, when calculating the outstanding amount of Indebtedness for purposes of this subclause (z), Indebtedness of any Acquisition Subsidiary, Indebtedness attaching to assets of any Acquisition Subsidiary and Indebtedness attaching to assets acquired by any Acquisition Subsidiary shall be excluded, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, PROVIDED that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(i) Indebtedness of the Borrower or any Restricted Subsidiary (including any Acquisition Subsidiary) incurred to finance a Permitted Acquisition, PROVIDED that (x) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (other than any Person is pledged acquired (the "ACQUIRED PERSON") as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, by the Borrower, (y)
(A) the Borrower pledges the capital stock of such acquired Person to the Administrative Agent to the extent required under Section 10.10(c) and 9.12, (2B) such acquired Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case Guarantee to the extent required under Section 10.10; provided that the assets covered 9.11 and (C) if a guarantee by such pledges and security interests mayacquired Person of any such Indebtedness is secured by assets of such acquired Person, the Guarantee referred to in the extent permitted by Section 11.2, preceding subclause (B) is equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; providedsecured, further, PROVIDED that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any time outstanding of up to (and including) $75,000,000 of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness assumed or permitted to exist under clause (j) above, when taken together, does not exceed $150,000,000 in the aggregate at any time outstanding, PROVIDED that, when calculating the outstanding amount of Indebtedness for purposes of this subclause (z), Indebtedness of the type that could have been incurred under Section 11.1(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 Acquisition Subsidiary shall be in compliance on a pro forma basis with the Financial Performance Covenantsexcluded, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness incurred specified in subclause (i) above, PROVIDED that (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to Refinance such Indebtednessrefinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted hereunder;
(jl) Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed (i) $50,000,000 MINUS (ii) the amount, if any, by which the aggregate amount of Indebtedness incurred and outstanding at such time pursuant to clause (n) below exceeds $100,000,000;
(i) Indebtedness incurred to finance a in connection with any Permitted Acquisition; provided Sale Leaseback and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, PROVIDED that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent , except to the extent required under Section 10.10(cotherwise permitted hereunder, (x) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) after giving effect to the incurrence principal amount 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 Covenants, as such covenant are recomputed as at the last day of 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 thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon any event of defaulty) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence)direct and contingent obligors with respect to such Indebtedness are not changed; and
(Dn) such (i) additional Indebtedness, PROVIDED that the aggregate amount of Indebtedness is incurred and remaining outstanding pursuant to this clause (n) shall not guaranteed at any time exceed the sum of (x) $100,000,000 and (y) the amount, if any, by which $50,000,000 exceeds the aggregate amount of Indebtedness then outstanding under clause (l) above, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;subclause (i) above.
Appears in 1 contract
Limitation on Indebtedness. The Borrower Company will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness; provided that the Company or any Restricted Subsidiary may incur Indebtedness other than if the followingConsolidated EBITDA to Consolidated Interest Expense Ratio for the most recently ended Test Period after giving Pro Forma Effect to the incurrence of such Indebtedness and the application of proceeds therefrom would be at least 2.00 to 1.00. Notwithstanding the foregoing, the Company and the Restricted Subsidiaries may create, incur, assume or suffer to exist any of the following Indebtedness:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of any Borrower or any Subsidiary Guarantor owing to Holdings, the Senior Notes Company or any Restricted Subsidiary, (ii) any Subsidiary who is not a Guarantor owing to any other Subsidiary who is not a Guarantor and (iii) subject to compliance with Section 10.5, any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and Subsidiary who is not a Guarantor owing to any Permitted Refinancing Indebtedness issued Borrower or incurred to Refinance such Indebtednessany Subsidiary Guarantor;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guaranteesguarantee, letter of credit, warehouse receipt or similar facilities facility entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower Company 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower Company in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; , provided that that, except as provided in clauses (j) and (k) below, there shall be no Guarantee (A) if the by a Restricted Subsidiary that is not a Guarantor of any Indebtedness being guaranteed under this Section 11.1(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 Company and (B) no guarantee in respect of the Second Lien Term Loans or Permitted Additional Debt, unless such Guarantee is made by any Restricted Subsidiary a Guarantor and, in the case of any Permitted Additional Debt (or Indebtedness under clause (b) 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 Guaranteethat is subordinated, is subordinated;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or and (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)Section 10.5;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; , (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof 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)) above, provided, that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $50,000,000 at any Permitted Refinancing time outstanding, and (iv) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or (iii) above, provided that, except to the extent otherwise expressly permitted hereunder, the principal amount thereof (including pursuant to clause (iii)) does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof (i) listed on Schedule 10.1 and any modification, replacement, refinancing, refunding, renewal or extension thereof, provided that (A) except to Refinance the extent otherwise expressly permitted hereunder, the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (B) the direct and contingent obligors with respect to such IndebtednessIndebtedness are not changed and (ii) owing by the Company to any Restricted Subsidiary or by any Restricted Subsidiary to the Company or any other Restricted Subsidiary;
(h) Indebtedness outstanding on in respect of Hedge Agreements;
(i) Indebtedness, other than Permitted Second Lien Incremental Indebtedness, under the Funding Date listed on Schedule 11.1 Second Lien Documents in an aggregate principal amount not to exceed $410,000,000 and any modification, replacement, refinancing, refunding, renewal or extension thereof (including with the proceeds of Permitted Refinancing Additional Debt), provided that (A) except to the extent otherwise expressly permitted hereunder, the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension, (B) the direct and contingent obligor with respect to such Indebtedness issued is not changed, (C) such Indebtedness shall have a final maturity date equal to or incurred later than the final maturity date of the Indebtedness under being modified, replaced, refinanced, refunded, renewed or extended, and (D) the terms and conditions (including, if applicable, as to Refinance collateral but excluding as to interest rate and prepayment premium) of any such modified, replaced, refinanced, refunded, renewed or extended Indebtedness, taken as a whole, are not materially less favorable to the Lenders than the terms and conditions of the Indebtedness being modified, replaced, refinanced, refunded, renewed or extended, provided that a certificate of an Authorized Officer of the Company delivered to the Administrative Agent at least five Business Days prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Company has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Company within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees);
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary or is merged with or into a Restricted Subsidiary (or where the survivor thereof is a Restricted Subsidiary that survives a merger with such Person or any of its SubsidiariesSubsidiary) or Indebtedness attaching to the assets that are acquired by the Borrower Company or any Restricted Subsidiary, in each case after the Funding Closing Date as the result of a Permitted Acquisition; provided that:
, provided, that (Aw) such Indebtedness existed at the time such Person became (or merged with) a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower Company or any Restricted Subsidiary (other than by any such Person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or and any of its Subsidiaries),
) and (C) (1y)(A) the Stock and Stock Equivalents of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c) 9.12 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.109.11 or 9.12, as applicable, provided that the requirements of this subclause (y) and the preceding proviso shall not apply to (I) an aggregate amount at any time outstanding of up to $200,000,000 at such time of the aggregate of (1) such Indebtedness (and modifications, replacements, refinancings, refundings, renewals and extensions thereof pursuant to subclause (ii) below) and (2) all Indebtedness as to which the second proviso to clause (k)(i) below then applies and (II) any Indebtedness of the type that could have been incurred under Section 10.1(f), and (ii) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise expressly permitted hereunder, (X) the principal amount of any such Indebtedness does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (Y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(Bi) 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 Covenants, as such covenant are recomputed as at the last day Permitted Additional Debt of the most recently ended Test Period as Company or any Restricted Subsidiary incurred to finance a Permitted Acquisition, provided that (x) if such incurrence and acquisition had occurred on the first day of such Test Period;
(C) the maturity of Indebtedness is incurred by a Restricted Subsidiary that is not a Guarantor, such Indebtedness is not earlier thanguaranteed by the Company or any Guarantor except as permitted by Section 10.5(g) and (y)(A) the Company or another Credit Party pledges the Stock and Stock Equivalents of such acquired Person to the Collateral Agent to the extent required under Section 9.12 and (B) such acquired Person executes a supplement to the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and security arrangements in relation to the Obligations reasonably acceptable to the Collateral Agent) to the extent required under Section 9.11 or 9.12, as applicable, (provided that that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to $200,000,000 at such time of the aggregate of (1) such Indebtedness (and modifications, replacements, refinancings, refundings, renewals and extensions thereof pursuant to subclause (ii) below) and (2) all Indebtedness as to which clause (I) of the second proviso to clause (j)(i) above then applies, and no mandatory repayment (ii) any modification, replacement, refinancing, refunding, renewal or redemption extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise expressly permitted hereunder, (X) the principal amount of any such Indebtedness does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (Y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(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, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(i) Indebtedness incurred in connection with any Permitted Sale Leaseback (provided that the Net Cash Proceeds thereof are promptly applied to prepayments of the Term Loans to the extent required by Section 5.2) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(i) additional Indebtedness and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (n) shall not at any time exceed $200,000,000; provided, however, not more than $100,000,000 in aggregate principal amount of Indebtedness of the Company or any Subsidiary Guarantor incurred under this clause (n) shall be secured;
(o) Indebtedness in respect of Permitted Additional Debt to the extent that the Net Cash Proceeds therefrom are, immediately after the receipt thereof, applied to the prepayment of Term Loans in accordance with Section 5.2;
(p) unsecured Indebtedness in respect of obligations of the Company or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services, provided that such obligations are incurred in connection with open accounts extended by suppliers on customary change of control or asset sale offers or upon any event of default) is required prior to, 91 trade terms (which require that all such payments be made within 60 days after the Maturity Date (determined at incurrence of the time related obligation) in the ordinary course of issuance business and not in connection with the borrowing of money or incurrence); andHedging Agreements;
(Dq) Indebtedness arising from agreements of the Company or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case entered into in connection with Permitted Acquisitions, other Investments and the disposition of any business, assets or Capital Stock permitted hereunder, other than Guarantee Obligations incurred by any Person acquiring all or any portion of such business, assets or Capital Stock for the purpose of financing such acquisition, provided that (i) such Indebtedness is not guaranteed reflected on the balance sheet of the Company or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial 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 respect subsequent changes in value), actually received by the Borrower Company and the Restricted Subsidiaries in connection with such disposition;
(r) Indebtedness of the Company or any Restricted Subsidiary consisting of (i) obligations to pay insurance premiums or (ii) take or pay obligations contained in supply agreements, in each case arising in the ordinary course of business and not in connection with the borrowing of money or Hedging Agreements;
(s) Indebtedness representing deferred compensation to employees of the Company (or any direct or indirect parent thereof) and the Restricted Subsidiaries incurred in the ordinary course of business;
(t) Unsecured, subordinated Indebtedness consisting of promissory notes in an aggregate principal amount of not more than $50,000,000 issued by the Company or any Guarantor except to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the extent permitted under Section 11.5;purchase or redemption of Stock or Stock Equivalents of the Company (or an
Appears in 1 contract
Sources: First Lien Credit Agreement (IPC Systems Holdings Corp.)
Limitation on Indebtedness. The Borrower will not, and will not permit Neither any Credit Party nor any of the Restricted its Subsidiaries to, shall create, incur, assume assume, guarantee or suffer be or remain liable with respect to exist any Indebtedness other than the following:following ("Permitted Indebtedness"):
(a) Indebtedness arising of Borrower or any of its Subsidiaries incurred in respect of any Extension of Credit under the Credit Documentsthis Agreement;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect existing as of the Senior Notes date of this Agreement and disclosed on SCHEDULE 8.1. attached hereto or in the Financial Statements referred to in Section 4.7. hereof and any feesrefinancings or refundings of such Indebtedness which will not increase the principal amount of such Indebtedness being refinanced or refunded or change the amortization thereof (other than to extend the same) and otherwise be on terms and conditions no less favorable to any Credit Party or the Lenders, underwriting discountsas determined by the Required Lenders, premiums and other costs and expenses incurred in connection with than the foregoing and any Permitted Refinancing Indebtedness issued being refinanced or incurred to Refinance such Indebtednessrefunded;
(c) Intercompany loans Indebtedness consisting of Capital Leases and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note motor vehicle and subject to subordination terms acceptable to the Administrative Agent, to the extent office equipment and furnishings installment sales contracts permitted by Requirements of Law and not giving rise to material adverse tax consequencesunder Section 8.9. hereof;
(d) Subordinated Indebtedness in respect due to SSH, Alarmguard Holdings or any other Affiliate of any bankers’ acceptance, bank guarantees, letter Borrower covered by the Affiliate Subordination Agreement or otherwise incurred with the prior consent of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)Required Lenders;
(e) subject Subordinated Indebtedness due to compliance any Person other than an Affiliate of Borrower and not incurred in connection with Section 11.5, Guarantee Obligations an Acquisition existing on the date hereof or otherwise incurred by (i) Restricted Subsidiaries in respect of Indebtedness with the prior consent of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeRequired Lenders;
(f) Guarantee Obligations (i) incurred in Indebtedness consisting of an Interest Rate Protection Arrangement having terms acceptable to the ordinary course of business Required Lenders and entered into solely in respect of obligations all or a portion of (the Loans and other Extensions of Credit under this Agreement as required by Section 7.17. hereof and as such Interest Rate Protection Arrangement may be amended, modified or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)supplemented from time to time with the prior consent of the Required Lenders;
(ig) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofconstituting Deferred Purchase Price Obligations; provided, or assumed in connection with, the 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 that (A) Capital Leases in effect on the Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case aggregate unpaid principal amount 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 all such Indebtedness with the Financial Performance Covenants, as such covenants are recomputed as shall not exceed TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) 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); any time and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence)unsecured; and
(Dh) such other Indebtedness is of Borrower and its Subsidiaries in an aggregate outstanding principal amount not guaranteed exceeding FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) in the aggregate at any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;time.
Appears in 1 contract
Sources: Term Loan and Acquisition Credit Agreement (Alarmguard Holdings Inc)
Limitation on Indebtedness. The Borrower Obligors will not, and will not permit any of the Restricted Borrower Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of the Obligors or any Borrower Subsidiary owed to the Parent and all other direct or indirect Subsidiaries of the Parent (the “Parent Subsidiaries”), or any other Borrower Subsidiary; provided that in the case of this Section 9.1(b), any subsequent issuance or transfer of any Stock of such Obligor or Borrower Subsidiary to which such Indebtedness is owed, or other event, that results in such Obligor or Borrower Subsidiary ceasing to be a Borrower Subsidiary or any other subsequent transfer of such Indebtedness (except to another Obligor) will be deemed, in each case, an Incurrence of such Indebtedness by the issuer thereof not permitted by this Section 9.1(b); 942882452.15
(c) Indebtedness of the Obligors or any Borrower Subsidiary in respect of (A) any bankers’ acceptance, bank guarantees, letter of credit or other similar instruments or obligations issued, or relating to liabilities or obligations incurred in the ordinary course of business (including Guarantee Obligations thereunderthose 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 those incurred to secure health, safety and environmental obligations in the ordinary course of business), (C) [reserved], (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 any Obligor or Borrower 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 (calculated in respect of the Senior Notes Parent and its Subsidiaries as opposed to the Applicable Entities) or (I) Bank Products;
(d) (A) Guarantee Obligations incurred by Borrower Subsidiaries or Obligors in respect of Indebtedness of Parent, or the Parent Subsidiaries, the Obligors or any other Borrower Subsidiary that is expressly permitted to be incurred under this Section 9.1 and (B) without limiting Sections 9.2 or 9.5, Indebtedness of the Obligors or Borrower Subsidiaries arising by reason of any Lien granted by or applicable to such Person securing Indebtedness of any Obligor or any Borrower Subsidiary that is expressly permitted to be incurred under this Section 9.1;
(e) Indebtedness (A) supported by a letter of credit issued in compliance with this Section 9.1, such Indebtedness to be permitted 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 Obligors or Borrower Subsidiaries;
(f) (i) Purchase Money Obligations and Capitalized Lease Obligations, provided that the aggregate amount of Indebtedness incurred pursuant to this subclause (f)(i) at any time outstanding (when aggregated with all Indebtedness outstanding under subclause (f)(ii) below) shall not exceed €75,000,000 and 5.00% of Consolidated Total Assets and (ii) any Refinancing Indebtedness in respect of any Indebtedness specified in subclause (f)(i) above;
(g) Existing Indebtedness and any Refinancing Indebtedness in respect of such Indebtedness;
(i) Indebtedness of (A) any Obligor or any Borrower Subsidiary incurred to finance or refinance, or otherwise incurred in connection with, any acquisition of assets (including Stock), business or Person, or any merger or consolidation of any Person with or into any Obligor or any Borrower Subsidiary, which acquisition, merger or consolidation is otherwise permitted pursuant to the terms of this Agreement; or (B) a Person that is acquired by or merged or consolidated with or into an Obligor or Borrower 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 Consolidated Total Leverage Ratio is equal to or less than 5.00:1.00 or (2) the Consolidated Total Leverage Ratio would be less than or equal to the Consolidated Total Leverage Ratio immediately prior to giving effect thereto; provided, further, that if, 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, 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 Section 9.1(h); and (ii) any Refinancing Indebtedness with respect to any such Indebtedness; 942882452.15
(i) Indebtedness in respect of Hedge Agreements not entered into for speculative purpose
(j) [Reserved]
(i) [Reserved]
(k) additional unsecured Indebtedness of the Obligors or any Borrower Subsidiaries in an aggregate principal amount not to exceed an amount equal to the greater of €75,000,000 and 7.00% of Consolidated Total Assets at any time outstanding;
(l) Indebtedness of the Obligors or any Borrower Subsidiary so long as after giving Pro Forma Effect to the Incurrence of such Indebtedness and the application of proceeds thereof on the date of Incurrence of such Indebtedness, the Consolidated Interest Coverage Ratio shall be equal to or greater than 2.0 to 1.0;
(m) Indebtedness of any Obligors or any Borrower Subsidiary 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 business, assets or Person;
(n) Indebtedness of any Obligor or any Borrower Subsidiary consisting of (i) financing of insurance premiums (x) in the ordinary course of business or (y) otherwise in an aggregate principal amount not to exceed the higher of €15,000,000 and 1.50% of Consolidated Total Assets at any time outstanding or (ii) take or pay obligations contained in supply agreements, in each case arising in the ordinary course of business;
(o) Indebtedness representing deferred compensation to employees of the Obligors (or any direct or indirect parent thereof) and the Borrower Subsidiaries incurred in the ordinary course of business;
(p) [Reserved]
(q) additional Indebtedness of Borrower Subsidiaries (and any guarantees thereof by such entities) under local working capital lines in an aggregate principal amount that at the time of incurrence does not cause the aggregate principal amount of Indebtedness incurred in reliance on this clause (r) to exceed the higher of €50,000,000 and 6% of Consolidated Total Assets;
(r) Indebtedness of any Obligors or any Borrower Subsidiary arising from the honouring of a check, draft or similar instrument of such Person drawn against insufficient funds in the ordinary course of business (provided that such Indebtedness is extinguished in the ordinary course of business);
(s) Indebtedness issuable upon the conversion or exchange of shares of Disqualified Equity Interests issued in accordance with Section 9.1(l) and any Refinancing Indebtedness with respect thereto;
(t) Indebtedness of any Obligor or any Borrower Subsidiary Incurred as consideration in connection with any acquisition of assets (including Stock), business or Person, or any merger or consolidation of any Person with or into any Obligor or any Borrower 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 €75.0 million and 7.0% of Consolidated Total Assets;
(u) Contribution Indebtedness and any Refinancing Indebtedness with respect thereto; and 942882452.15
(v) lease obligations in respect of Sale and Lease-Back Transactions in an aggregate principal amount not to exceed the greater of €25,000,000 and 2% of Consolidated Total Assets. For purposes of determining compliance with, and the outstanding principal amount of any particular Indebtedness incurred pursuant to and in compliance with, this Section 9.1, (i) any other obligation of the obligor on such Indebtedness (or of any other Person who could have incurred such Indebtedness under this Section 9.1) 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 Incurred pursuant to Section 9.1 meets the criteria of more than one of the types of Indebtedness described in Section 9.1 (excluding Section 9.1(l)), any Obligor or Borrower Subsidiary, 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 9.1 (excluding Section 9.1(l) but otherwise including in part under one such clause and in part under another such clause); provided that (if any Obligor or Borrower Subsidiary shall so determine) any Indebtedness Incurred pursuant to Sections 9.1(f), 9.1(k) or 9.1(t) shall cease to be deemed Incurred or outstanding for purposes of such clause but shall be deemed incurred for the purposes of Section 9.1(1) from and after the first date on which any Obligor or Borrower Subsidiary could have incurred such Indebtedness under Section 9.1(l) without reliance on such clause; (iii) in the event that Indebtedness could be incurred in part under Section 9.1(l), any Obligor or Borrower Subsidiary, in its sole discretion, may classify a portion of such Indebtedness as having been incurred under Section 9.1(l) and the remainder of such Indebtedness as having been incurred under any other provision in Section 9.1; (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 Section 9.1 (excluding Section 9.1(l)) 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, 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 payable in connection with the foregoing such refinancing and (vii) if any Permitted Refinancing Indebtedness issued or is incurred to Refinance refinance Indebtedness initially incurred in reliance on a basket measured by a euro amount, such Indebtedness;
euro amount shall not be deemed to be exceeded (cand such refinancing Indebtedness shall be deemed permitted) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements the principal amount of Law and such newly incurred Indebtedness does not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in exceed the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 principal amount of such Indebtedness being refinanced, plus the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (Bincluding accrued and unpaid interest) no guarantee incurred or payable in connection with such refinancing. For purposes of determining compliance with any provision of Section 9.1 (excluding Section 9.1(l) but including any category of Permitted Liens described in the definition thereof) measured by any Restricted Subsidiary a euro amount or by reference to a percentage of any Permitted Additional Debt (Consolidated Total Assets for the incurrence of Indebtedness or Liens securing Indebtedness under clause (b) above) denominated in a foreign currency, the euro equivalent principal amount of such Indebtedness incurred pursuant thereto shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Obligations substantially calculated based on the terms set forth in the Guarantee;
(f) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 relevant currency exchange rate in effect on the Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided thatdate that such Indebtedness was incurred, in the case of each term Indebtedness, or first committed, in the case of revolving or deferred draw Indebtedness, provided that (x) the foregoing subclauses (i) and (ii), the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence euro equivalent principal amount of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Funding Amendment and Restatement Date listed shall be calculated based on Schedule 11.1 the relevant currency exchange rate in effect on the Amendment and any Permitted Refinancing Restatement Date, (y) if such Indebtedness issued or is incurred to Refinance refinance other Indebtedness denominated in a foreign currency (or in a different currency from such Indebtedness;
Indebtedness so being incurred), and such refinancing would cause the applicable provision of Section 9.1 (excluding Section 9.1(l) but including any category of Permitted Liens) measured 942882452.15 by a euro amount or be reference to a percentage of Consolidated Total Assets to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such provision of Section 9.1 (excluding Section 9.1(l) but including any category of Permitted Liens) measured by a euro amount or by reference to a percentage of Consolidated Total Assets 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 a Person fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred or Indebtedness attaching to the assets of a Person that, payable in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger connection with such Person refinancing and (z) the euro equivalent principal amount of Indebtedness denominated in a foreign currency and incurred pursuant to this Agreement, the Cash Flow Term Facility or any of its Subsidiaries) or Indebtedness attaching to the assets that are acquired by US ABL Facility shall be calculated based on the Borrower or any Restricted Subsidiaryrelevant currency exchange rate in effect on, in each case after at the Funding Date as the result of a Permitted Acquisition; provided that:
Company's option, (A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired andAmendment and Restatement Date, in each case, was not created in 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 date on which any of its Subsidiaries),
(C) (1) the Stock of such Person is pledged to the Administrative Agent to the extent required respective commitments under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security this Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 reallocated between or among facilities or subfacilities thereunder, or on a pro forma basis with the Financial Performance Covenantswhich such rate is otherwise calculated for any purpose thereunder, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test Period;
or (C) the maturity 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 not earlier than, and no mandatory repayment or redemption (other than customary change denominated that is in effect on the date of control or asset sale offers or upon any event of default) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;refinancing.
Appears in 1 contract
Sources: Abl Credit Agreement (Univar Inc.)
Limitation on Indebtedness. The Borrower (A) Holdings will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Loan Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect any Loan Party to another Loan Party, (ii) of the Senior Notes any Non-Subsidiary Loan Party to any other Non-Subsidiary Loan Party and (iii) subject to Section 6.05(g), Indebtedness of any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and Non-Subsidiary Loan Party to any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessLoan Party;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guaranteesacceptance (other than a bankers’ acceptance issued in respect of borrowed money), letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) except as provided in clauses (j) and (k) below, subject to compliance with Section 11.56.05(g), Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower Holdings 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower Holdings in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) if by any Restricted Subsidiary that is not a Guarantor of any Indebtedness of a Borrower or any Guarantor and (b) in respect of Indebtedness under the Indebtedness being guaranteed under this Section 11.1(e) Senior Bridge Loan Facility, the Senior Subordinated Bridge Loan Facility or Permitted Additional Notes, unless such Guarantee is made by a Guarantor and such Guarantee is unsecured and subordinated to the ObligationsLoans, provided, further that in the event such Guarantee Obligations are incurred in respect of Subordinated Indebtedness, then such Guarantee Obligation shall be subordinated to the Guarantee right of payment 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 Guaranteesame extent;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, before or assumed in connection with, after the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures (it being understood that the Canadian Borrower may determine in good faith the purpose for which Indebtedness was incurred), (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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 Covenants, as such covenants are 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 refinancing, refunding, renewal or extension of any Indebtedness issued under this clause (f), provided that (i) the principal amount thereof (not including any reasonable prepayment premiums, fees, costs and expenses) is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder; provided that the aggregate amount of Indebtedness incurred pursuant to Refinance this clause (f) shall not exceed $100.0 million at any time outstanding;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 6.01 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof (not including any reasonable prepayment premiums, fees, costs and expenses) is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding in respect of Swap Agreements entered into for bona fide (non-speculative) business purposes;
(i) (i)(a) Indebtedness in respect of the Senior Bridge Loan Facility (including for the avoidance of doubt Senior Rollover Loans and Senior Exchange Notes) in an aggregate principal amount not to exceed (together with amounts pursuant to clause (ii) below) $692,825,000 (or such lesser aggregate principal amount as may be incurred on the Funding Date listed Closing Date) and (b) Indebtedness in respect of the Senior Subordinated Bridge Loan Facility (including for the avoidance of doubt Senior Subordinated Rollover Loans and Senior Subordinated Exchange Notes) in an aggregate principal amount not to exceed (together with amounts pursuant to clause (ii) below) $217,175,000 (or such lesser aggregate principal amount as may be incurred on Schedule 11.1 the Closing Date) and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessBridge Refinancings thereof;
(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 Holdings or any Restricted Subsidiary, in each case after the Funding Closing Date as the result of a Permitted Acquisition; Acquisition in an aggregate amount (together with amounts pursuant to clause (ii) below) not to exceed $200.0 million at any time outstanding, provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower Holdings or any Restricted Subsidiary (other than by any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its Subsidiaries),
Subsidiary) and (C) (1y)(A) the Stock capital stock of such Person is pledged to the Administrative Agent Agent, as applicable, to the extent required under Section 10.10(c) 5.10 and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement Agreements and the Pledge AgreementAgreements (or alternative guarantee and security arrangements in relation to the Obligations reasonably acceptable to the Administrative Agent, in each case as applicable) to the extent required under Section 10.10; 5.10, provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any Indebtedness time outstanding of up to (and including) the Guarantee and Collateral Exception Amount at such time of the type that could have been incurred under Section 11.1(g)aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness incurred specified in subclause (i) above, provided that, except to Refinance the extent otherwise permitted hereunder, (x) the principal amount of any such IndebtednessIndebtedness is not increased above the principal amount thereof outstanding (not including any reasonable prepayment premiums, fees, costs and expenses) immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(j) (i) Indebtedness of Holdings or any Restricted Subsidiary (including any Permitted Additional Notes) incurred to finance a Permitted Acquisition; Acquisition in an aggregate principal amount (together with amounts pursuant to clause (ii) below) not to exceed $200.0 million at any time outstanding, provided that:
that (Ax) except in the case of Permitted Additional Notes, such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (1) the Stock of the other than any Person acquired is pledged (the “acquired Person”) as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, subject to compliance with Section 6.05(i), by Holdings, and (y)(A) Holdings pledges the capital stock of such acquired Person to the Administrative Agent to the extent required under Section 10.10(c) 5.10 and (2B) such acquired Person executes a supplement to each of the Guarantee, the Security this Agreement and any applicable Security Documents (or alternative guarantee and security arrangements in relation to the Pledge Agreement and delivers any other Security Documents, in each case, Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.105.10, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (ii) any refinancing, refunding, renewal or extension of any such Indebtedness, provided that (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding (not including any reasonable prepayment premiums, fees, costs and expenses) immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted hereunder;
(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, including those incurred to secure health, safety, environmental and regulatory obligations in the ordinary course of business;
(i) Indebtedness incurred in connection with any Permitted Sale Leaseback (provided that the Net Cash Proceeds (other than Net Cash Proceeds from the T10R Sale Leaseback) thereof are promptly applied to the extent required by Section 2.11(e)) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding (not including any reasonable prepayment premiums, fees, costs and expenses) immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(n) additional Indebtedness; provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (n) shall not at any time exceed $200.0 million at any time outstanding;
(o) Indebtedness in respect of Permitted Additional Notes to the extent that the Net Cash Proceeds therefrom are, immediately after the receipt thereof, applied to the prepayment of Term Loans in accordance with Section 2.11(e);
(p) Indebtedness in respect of the Telesat Notes so long as such Indebtedness is redeemed within 45 days after the Closing Date and the Canadian Borrower retains prior to such time sufficient funds in a segregated account to pay the redemption price therefor;
(q) Indebtedness consisting of Mezzanine Securities issued pursuant to Section 6.12(h)(a); and
(r) (i) up to $500.0 million (together with amounts pursuant to clause (ii) below (other than reasonable prepayment premiums, fees, costs and expenses)) of Indebtedness incurred to construct or acquire up to four Satellites (including transponders and including replacement Satellites constructed or acquired to replace Satellites, including existing Satellites), any of which may be pursuant to a condosat transaction, and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that the principal amount thereof (not including any reasonable prepayment premiums, fees, costs and expenses) is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension;
(B) after giving effect to the incurrence of The Loan Parties will not issue 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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor Disqualified Capital Stock except to the extent it is treated as Indebtedness and otherwise permitted under this Section 11.5;6.01.
Appears in 1 contract
Sources: Credit Agreement (Loral Space & Communications Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the followingforegoing, the limitations set forth in the immediately preceding paragraph shall not apply to any of the following items:
(a) Indebtedness arising under the Credit DocumentsDocuments (including the 2016 Incremental Term Loans, the New Revolving Credit Commitments pursuant to the 2016 Incremental Amendment, the 2018 Incremental Term Loans, the 2019 Incremental Term Loans, the 2023 Incremental Term Loans, the New Revolving Credit Commitments pursuant to the Seventh Amendment, the Eighth Amendment, the Ninth Amendment, the Eleventh Amendment and, the Twelfth Amendment and the Sixteenth Amendment and any other Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(b) subject to compliance with Section 10.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued Borrower or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and the Intercompany Subordinated Note 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of construction and restoration activities and 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 claimsclaims and similar obligations);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e10.1(d) 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 193 such Indebtedness Indebtedness, and (B) no guarantee the aggregate principal amount of Guarantee Obligations incurred by any Restricted Subsidiaries that are not Subsidiary of any Permitted Additional Debt (or Indebtedness Guarantors under this clause (bd), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Sections 10.1(k) aboveand 10.1(ii) (but without duplication of such amounts), shall be permitted unless such Restricted Subsidiary shall have also provided not exceed the greater of (x) $300,000,000 and, on and after the Sixteenth Amendment Effective Date, the greatest of (x) $1,000,000,000, (y) 17.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a guarantee Pro Forma Basis) at the time of incurrence or issuance and (z) 2.50% of Consolidated Total Assets as of the Obligations substantially last day of the most recently ended Test Period (calculated on the terms set forth a Pro Forma Basis), in the Guaranteeeach case at any time outstanding;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business (including in respect of construction or restoration activities) in respect of obligations of (or to) suppliers, customers, franchisees, lessorslessors and licensees, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(B) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary Section 10.5 (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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent Investments permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject 10.5(l) by reference 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Section
Appears in 1 contract
Sources: Credit Agreement (Vistra Corp.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, createdirectly or indirectly, incurIncur, assume contingently or suffer otherwise, with respect to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Credit Documents;
, including pursuant to Sections 2.14 and 2.15, and (bii) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Credit Agreement Refinancing Indebtedness issued or incurred Incurred to Refinance (in whole or in part) such Indebtedness;
(ci) Intercompany loans Indebtedness arising under the First Lien Credit Documents (including any guarantees in respect thereof) in an aggregate principal amount not to exceed $725,000,000; and advances made by the Borrower (ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness; provided that, notwithstanding any Restricted Subsidiary or made by any Restricted Subsidiary other provision herein to the Borrower or its Restricted Subsidiaries so long as contrary, no Person other than a Credit Party shall at any time be an obligor in respect of any such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesIndebtedness;
(di) Indebtedness constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letter letters of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice (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 with respect to reimbursement-type obligations regarding workers compensation claims), health, disability or other employee benefits or property, casualty or liability insurance or self-insurance) and (ii) Indebtedness supported by Letters of Credit (as defined in the First Lien Credit Agreement) or other letters of credit under similar facilities in an amount not to exceed the Stated Amount (as defined in the First Lien Credit Agreement) of such Letters of Credit (as defined in the First Lien Credit Agreement) or stated amount of such other letters of credit under such similar facilities;
(ed) subject to compliance with Except as otherwise limited by clauses (a), (b), (h) and (u) of this Section 11.510.1, Guarantee Obligations incurred Incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement; provided that (A) that, if the applicable Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligations, any 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeObligations;
(fe) Guarantee Obligations (i) incurred Incurred in the ordinary course of business or consistent with past practice in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or distribution partners;
(f) (i) Indebtedness (including Financing Lease Obligations and other Indebtedness arising under mortgage financings and purchase money Indebtedness (including any industrial revenue bond, industrial development bond or similar financings)) the proceeds of which are used to finance (whether prior to or after) the acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of property (real or personal), equipment or assets, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets or otherwise Incurred in respect of Capital Expenditures; provided that such Indebtedness is Incurred concurrently with or within 270 days after the completion of the applicable acquisition, development, construction, repair, restoration, replacement, maintenance, upgrade, expansion or improvement or the making of the applicable Capital Expenditure; provided, further, that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) otherwise constituting Investments permitted in respect of such Indebtedness then outstanding) shall not, except as contemplated by Sections 11.5(b)(iv)the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (viii), I) the greater of (xv), x) $52,000,000 and (xviy) 32.50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Internal Financial Statements most recently available on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(g) and (xviiii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness;
(g) (i) Indebtedness constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the Closing Date (and set forth on Schedule 10.1) or Financing Lease Obligations entered into pursuant to Section 10.1(f); provided that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $52,000,000 and (y) 32.50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Internal Financial Statements most recently available on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(f); and (ii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness.
(h) Closing Date Indebtedness and any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, in respect of Hedging Agreements Incurred in the ordinary course of business or assumed in connection with, the 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 Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided thatconsistent with past practice and, in the case of each of the foregoing subclauses (i) and (ii)case, the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednesstime entered into, not for speculative purposes;
(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 merger, consolidation or amalgamation 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 Funding Closing Date as the result of an Acquisition or other Investment or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Permitted AcquisitionRestricted Subsidiary; provided that:
(A) subject to Section 1.10, after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred and is continuing;
(B) as of the date that any such Person becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger, consolidation or amalgamation with such a Person or any of its Subsidiaries) or the date that any such assets are acquired by the Borrower or any Restricted Subsidiary and after giving pro forma effect thereto, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(j) does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(k)(i)(B)(I) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(j) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $31,200,000 and (y) 19.50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date plus (II) subject to Section 1.10, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis, with either (X) a Consolidated EBITDA to Consolidated Interest Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest Expense Ratio of the Borrower and the Restricted Subsidiaries immediately prior to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of either (x) not greater than 6.00:1.00 or (y) not greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,;
(BD) such Indebtedness is not guaranteed in any respect by Holdings, 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),) except to the extent permitted under Section 10.5 or Section 10.6;
(CE) (1x) the Capital Stock of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c) 9.11 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2y) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and delivers security arrangements in relation to the Obligations) and a counterpart signature page to the Intercompany Notes, in each case to the extent required under Section 9.10, 9.11 or 9.14(b), as applicable; provided that the requirements of this clause (E) shall not apply to any Indebtedness of the type that could have been Incurred under Section 10.1(f) or Section 10.1(g); and
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(k) (i) Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance an Acquisition or other Investment; provided that,
(A) subject to Section 1.10, after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred and is continuing;
(B) as of the date of such Incurrence and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(k), does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(j)(i)(B)(I) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(k) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $31,200,000 and (y) 19.50% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date plus (II) subject to Section 1.10, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis with either (X) a Consolidated EBITDA to Consolidated Interest Expense Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Specified Transaction and Specified Restructuring occurred on the first day of such Test Period, of either (x) not less than 2.00:1.00 or (y) not less than the Consolidated EBITDA to Consolidated Interest Expense Ratio of the Borrower and the Restricted Subsidiaries immediately prior to giving effect to such Incurrence and such other transactions or (Y) with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of either (x) not greater than 6.00:1.00 or (y) not greater than the Consolidated Total Debt to Consolidated EBITDA Ratio immediately prior to giving pro forma effect to all such Incurrences and such other transactions;
(C) if such Indebtedness is Incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness shall not be guaranteed in any respect by Holdings, the Borrower or any other Subsidiary Guarantor except to the extent permitted under Section 10.5;
(D) (x) the Capital Stock of any Person acquired in such Acquisitions or other Investment (the “acquired Person”) is pledged to the Collateral Agent to the extent required under Section 9.11 and (y) such acquired Person executes a supplement to each of the Guarantee, the Security DocumentsAgreement and the Pledge Agreement and a counterpart signature page to the Intercompany Note (or alternative guarantee and security arrangements in relation to the Obligations), in each case, to the extent required under Section 10.10;
(B) after giving effect to the incurrence of any such Indebtedness9.10, 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 Covenants9.11 or 9.14(b), as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence)applicable; and
(DE) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except Except to the extent permitted under Section 11.5constituting First Lien Obligations, the terms of such Indebtedness shall be consistent with the requirements set forth in clause (a) and clause (b) of the proviso to the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized Officer of the Borrower delivered to the Administrative Agent at least five Business Days prior to the Incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (including a reasonable description of the basis upon which it disagrees);
Appears in 1 contract
Sources: Second Lien Credit Agreement (Grocery Outlet Holding Corp.)
Limitation on Indebtedness. (A) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) subject to compliance with Section 10.5(g), any Restricted Subsidiary to the Borrower or its any Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ acceptancebanker’s acceptances, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) except as provided in clauses (i) and (j) below, subject to compliance with Section 11.510.5(g), Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that there shall be no Subsidiary Guarantee (A) if the by any Restricted Subsidiary that is not a Subsidiary Guarantor of any Indebtedness being guaranteed under this Section 11.1(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 Borrower and (B) no guarantee by any Restricted Subsidiary in respect of any the Senior Notes or Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted Notes, unless such Restricted Subsidiary shall have also provided Guarantee is made by a guarantee of the Obligations substantially on the terms set forth Subsidiary Guarantor and such Subsidiary Guarantee is unsecured (and subordinated in the Guaranteecase of Permitted Additional Notes that are subordinated);
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofof (A) the acquisition (by purchase, lease or assumed in connection withotherwise), the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets (including real property), and (B) any ECA Financings to finance (1) the acquisitionacquisition (by purchase, constructionlease or otherwise), lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets and (2) such ECA Financings or otherwise incurred in respect of capital expenditures, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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), ) above; provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this subclause (iii) shall not exceed $150,000,000 at any Permitted Refinancing time outstanding;
(g) Indebtedness issued or incurred to Refinance any such Indebtednessoutstanding on the Closing Date and listed on Schedule 10.1 hereto;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect of Hedge Agreements;
(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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
that (Av) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with Section 11, (w) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than by any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its Subsidiaries),
Subsidiary) and (C) (1y)(A) the Stock capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2B) such Person executes a supplement to each of the Guarantee, the applicable Security Agreement and the applicable Pledge Agreement, Agreement (or alternative guarantee and security arrangements in each case relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.109.11 or 9.12, as applicable; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any Indebtedness time outstanding of up to (and including) the Guarantee and Collateral Exception Amount at such time of the type that could have been incurred under Section 11.1(g), and
aggregate of (D1) after giving effect such Indebtedness and (2) all Indebtedness as to which the assumption of any such Indebtedness, proviso 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
clause (iij)(y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtednessbelow then applies;
(j) Indebtedness of the Borrower or any Restricted Subsidiary (iincluding any Permitted Additional Notes) Indebtedness incurred to finance a Permitted Acquisition; provided that:that (w) the Borrower shall be in compliance, on a pro forma basis after giving effect to the incurrence of such Indebtedness, with Section 11, (x) except in the case of Permitted Additional Notes, such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (other than any Person acquired (the “acquired Person”) as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, subject to compliance with Section 10.5(g), by the Borrower and (y)
(A) (1) the Stock Borrower pledges the capital stock of the such acquired Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2B) such acquired Person executes a supplement to each of the Guarantee, the applicable Security Agreement and the applicable Pledge Agreement (or alternative guarantee and delivers any other Security Documents, security arrangements in each case, relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.109.11 or 9.12, as applicable; provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (i)(y) above then applies;
(Bk) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, customs 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, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(l) Indebtedness incurred in connection with any Permitted Sale Leaseback (provided that the Net Cash Proceeds thereof are promptly applied to the extent required by Section 5.2);
(m) Indebtedness not otherwise permitted under this Section 10.1; provided, however, that (i) both immediately prior to and after giving effect thereto, no Default or Event of Default shall exist or result therefrom, (ii) the Borrower and its Restricted Subsidiaries shall, on a pro forma basis after giving effect to the incurrence or issuance and application of any the proceeds of such Indebtedness, to such acquisition and to any related pro forma adjustment, the Borrower shall be in compliance with Section 11 and (iii) as of the date any such Indebtedness is incurred, on a pro forma basis with after giving effect to the Financial Performance Covenants, as such covenant are recomputed as at the last day incurrence and application of the most recently ended proceeds of such Indebtedness, the Consolidated Total Debt to Consolidated EBITDA Ratio for the Test Period as if immediately preceding such incurrence and acquisition had occurred on the first day date shall be less than or equal to 6.75 to 1.0; provided, further, that no more than $400,000,000 in aggregate principal amount of such Test PeriodIndebtedness of one or more Restricted Subsidiaries that are not Guarantors incurred pursuant to this clause (m) shall be outstanding at any one time;
(Cn) Indebtedness in respect of Permitted Additional Notes to the maturity of such Indebtedness is not earlier thanextent that the Net Cash Proceeds therefrom are, 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 immediately after the Maturity Date (determined at receipt thereof, applied to the time prepayment of issuance or incurrence); andTerm Loans in accordance with Section 5.2;
(Do) such Indebtedness is not guaranteed of the Borrower or any of its Subsidiaries which may be deemed to exist in any respect by connection with agreements providing for indemnification and similar obligations in connection with acquisitions or sales of assets and/or businesses effected in accordance with the requirements of this Agreement;
(p) Indebtedness of the Borrower or any Subsidiary Guarantor except not otherwise permitted hereunder in an aggregate principal amount which, when aggregated with the principal amount or liquidation preference of all other Indebtedness then outstanding and incurred pursuant to this clause (p), does not exceed the greater of (x) $500,000,000 and (y) 3% of the Total Assets of the Borrower at the time of incurrence, at any one time outstanding;
(q) Guarantee Obligations (i) of the Borrower in favor of its Subsidiaries to permit foreign currency transactions or fund transfers in an aggregate amount not to exceed $20,000,000 at any time outstanding, (ii) of the Borrower or any of its Subsidiaries as a guarantor of the lessee under any lease pursuant to which the Borrower or any of its Subsidiaries is the lessee, other than any capital lease pursuant to which a Subsidiary that is not a Subsidiary Guarantor is the lessee, so long as such lease is otherwise permitted hereunder, (iii) of the Borrower or any of its Subsidiaries as a guarantor of any Capitalized Lease Obligation to which a Joint Venture is a party or any contract entered into by such Joint Venture in the ordinary course of business; provided that the maximum liability of the Borrower or any of its Subsidiaries in respect of any obligations as described in this clause (iii) is permitted as an Investment pursuant to the requirements of Section 10.5, and (iv) of the Borrower or any of its Subsidiaries which may be deemed to exist pursuant to the Transactions or acquisition agreements entered into in connection with Permitted Acquisitions (including any obligation to pay the purchase price therefor and any indemnification, purchase price adjustment and similar obligations to the extent otherwise permitted hereunder);
(r) obligations of the Borrower or any Subsidiary consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business, in each case to the extent constituting Indebtedness;
(s) Contribution Indebtedness, so long as (i) no Default or Event of Default shall exist at the time of or immediately after giving effect to the incurrence thereof, (ii) calculations are made by the Borrower demonstrating pro forma compliance (giving effect to the application of proceeds of such Contribution Indebtedness) with the covenants contained in Section 11 for the Test Period most recently completed, (iii) the Borrower shall furnish to the Administrative Agent a certificate from an Authorized Officer certifying to the best of his or her knowledge as to compliance with the requirements of this Section 10.1(A)(s) and containing the calculations required by the preceding clause (ii), and (iv) the aggregate amount of such Indebtedness in excess of the CI Contributions made in determining the amount of such Indebtedness pursuant to the determination of Contribution Indebtedness is subordinated in right of payment to the Obligations pursuant to subordination provisions in form and substance satisfactory to the Administrative Agent;
(t) Indebtedness of Subsidiaries that are not Subsidiary Guarantors for working capital purposes, so long as the Indebtedness under this clause (t) does not exceed $100,000,000 in the aggregate at any time outstanding;
(u) Indebtedness incurred by a Receivables Subsidiary in a Qualified Receivables Financing that is not recourse (except for Standard Securitization Undertakings) to the Borrower or any of its Subsidiaries other than a Receivables Subsidiary in an amount not to exceed $600,000,000 at any time outstanding;
(v) letters of credit and bank guarantees denominated in currencies other than Dollars and Euros, so long as the aggregate U.S. Dollar equivalent of all such letters of credit and bank guarantees does not exceed $20,000,000 at any time;
(w) Permitted Refinancing Indebtedness in respect of any Indebtedness permitted under clauses (f), (g), (i), (j), (l), (m), (n), (s), (t) and (v) of this Section 11.5;10.1(A); and
(x) Indebtedness of Intelsat New ▇▇▇▇ Company, Ltd. and its Subsidiaries so long as the Indebtedness under this clause (x) does not exceed $250,000,000 in the aggregate at any time outstanding.
(B) The Borrower will not issue any preferred stock or other preferred equity interests other than Qualified PIK Securities; provided that the Borrower or any Restricted Subsidiary may issue Disqualified Preferred Stock to the extent that the same shall be treated as, and shall be restricted to the same extent as, Indebtedness for borrowed money for all purposes under this Agreement and is otherwise permitted to be issued hereunder.
Appears in 1 contract
Sources: Credit Agreement (Intelsat S.A.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) subject to compliance with Section 10.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and Borrower or of any feesRestricted Subsidiary owed to the Borrower or any Restricted Subsidiary; provided that, underwriting discountsin each case, premiums and other costs and expenses incurred in connection with all such Indebtedness of any Credit Party owed to any Person that is not a Credit Party shall be subordinated to the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance Obligations of such IndebtednessCredit Party on customary terms;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement Agreement, provided that, except as provided in clauses (except that j) and (k) below, there shall be no guarantee by a Restricted Subsidiary that is not a Guarantor of any Indebtedness of any Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(ivSection 10.5(d), (viiig), (xvi), (xviq), (r) and or (xviis);
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, expansion or improvement of such fixed or capital assets; , (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof 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) above, provided that the aggregate amount of Indebtedness incurred pursuant to this subclause (iii) shall not exceed $300,000,000 at any time outstanding, and (iv) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i), the Borrower shall be in compliance on a pro forma basis after giving effect (ii) or (iii) above, provided that, except to the incurrence extent otherwise expressly permitted hereunder, the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension;
(i) Indebtedness outstanding on the date hereof listed on Schedule 10.1 (other than Existing Notes with a stated final maturity (as of the Closing Date) prior to the Final Maturity Date) and any modification, replacement, refinancing, refunding, renewal or extension thereof, provided that, except to the extent otherwise expressly permitted hereunder, in the case of any such modification, replacement, refinancing, refunding, renewal or extension, (w) the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension, (x) the direct and contingent obligors with respect to such Indebtedness are not changed, (y) no portion of such Indebtedness matures prior to the Final Maturity Date and (z) if the Indebtedness being refinanced, or any guarantee thereof, constituted Subordinated Indebtedness, then such replacement or refinancing Indebtedness, or such guarantee, respectively, shall be subordinated to the Obligations to substantially the same extent and (ii) Indebtedness in respect of Existing Notes with the Financial Performance Covenants, a stated final maturity (as such covenants are recomputed as at the last day of the most recently ended Test Period as if Closing Date) prior to the Final Maturity Date and any modification, refinancing, refunding renewal or extension thereof; provided that in the case of any such incurrence had occurred on modification, replacement, refinancing, refunding, renewal or extension (A) the first day principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension, (B) no portion of such Test Period); Indebtedness matures prior to the stated final maturity of such Existing Notes as of the Closing Date, (C) the direct and contingent obligors with respect to such Indebtedness are not changed and (iiiD) if the Indebtedness being refinanced, or any Permitted Refinancing Indebtedness issued guarantee thereof, constituted Subordinated Indebtedness, then such replacement or incurred refinancing Indebtedness, or such guarantee, respectively, shall be subordinated to Refinance any such Indebtednessthe Obligations to substantially the same extent;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect of Hedge Agreements;
(i) [Reserved];
(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 SubsidiariesPerson) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funding Closing Date as the result of a Permitted Acquisition; , provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Section 2.17 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness);
(b) [reserved];
(c) unsecured Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Unsecured Notes (and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing foregoing) and any unsecured Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(cd) Intercompany loans and advances made by Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Guarantor shall (x) be evidenced by the Intercompany Note or (y) otherwise be outstanding on the Effective Date so long as such Indebtedness is evidenced by an intercompany note and Intercompany Note or otherwise subject to subordination terms acceptable substantially identical to the Administrative Agentsubordination terms set forth in the Intercompany Note, in each case, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, (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;
(de) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ef) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 11.1(e) 10.1(f), guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(f) 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 of any Permitted Additional Debt (or Indebtedness under clause (bc) 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;
(fg) Guarantee Obligations (i) 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 11.5(b)(iv10.5(d), (viiig), (xvi), (xvij), (k), (r), (s), (t) and (xviiu);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred prior to or within 270 three hundred sixty-five (365) days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) 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 Funding Effective 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 Compliance with the Leverage Ratio Covenant on a pro forma basis Pro Forma Basis immediately after giving effect to the incurrence of such Indebtedness with (and the Financial Performance Covenants, as such covenants are recomputed as at the last day use of the most recently ended Test Period as if such incurrence had occurred on the first day of such Test Periodproceeds thereof); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness; provided, that the aggregate principal amount of Indebtedness permitted by subclauses (i), (ii) and (iii) of this Section 10.1(h) shall not exceed at any time outstanding the greater of $60,000,000 and 2.0% of Consolidated Total Assets;
(hi) Indebtedness outstanding on the Funding Effective Date listed (provided that any Indebtedness that is in excess of $1,000,000 individually shall only be permitted under this clause (i) to the extent such Indebtedness is set forth on Schedule 11.1 10.1) and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(j) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(k) (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 case, after the Funding Effective Date as the result of a Permitted AcquisitionAcquisition or other Investment permitted under Section 10.5; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,;
(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 Equity Interests of such Person is are pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement to each of the Guarantee, Guarantee and the Security Collateral Agreement and a joinder to the Pledge AgreementIntercompany Note, in each case to the extent required under Section 10.109.11; provided that the assets covered by such pledges and security interests may, at the option of the Borrower, to the extent permitted by Section 11.210.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agenta Customary Intercreditor Agreement; 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 11.1(g10.1(h), and;
(D) and the property acquired shall not constitute Oil and Gas Properties (and any Person acquired in such Permitted Acquisition or other Investment shall not own or hold any Oil and Gas Properties); and
(E) immediately after giving effect to the assumption of any such Indebtedness, to such acquisition and to any related pro forma adjustmenttransactions, the Borrower shall be in compliance with the Leverage Ratio Covenant on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence)Pro Forma Basis; and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, createCreate, incur, assume or suffer to exist any Indebtedness other than the followingexcept:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(i) Indebtedness of a Person or Indebtedness attaching Subsidiary of the Borrower owed to the assets Borrower or a wholly-owned Subsidiary of the Borrower, which Indebtedness shall (A) in the case of Indebtedness owed to a Loan Party, constitute “Pledged Notes” under the Pledge Agreement, (B) be on terms (including subordination terms) acceptable to the Administrative Agent and (C) be otherwise permitted under the provisions of Section 7.03;
(ii) Indebtedness under the Loan Documents;
(iii) Indebtedness of the Borrower and its Subsidiaries outstanding on the Closing Date and disclosed on Schedule 7.02 (collectively, the “Existing Debt”);
(iv) Indebtedness consisting of Guarantees (A) by the Borrower in respect of Indebtedness, leases and other ordinary course obligations permitted to be incurred by Wholly-Owned Domestic Subsidiaries of the Borrower, and (B) by Domestic Subsidiaries of the Borrower of Indebtedness, leases or other ordinary course obligations permitted to be incurred by, or obligations in respect of Permitted Acquisitions of, the Borrower or Wholly-Owned Domestic Subsidiaries of the Borrower;
(v) Purchase Money Indebtedness and Attributable Indebtedness in respect of Capital Leases and Synthetic Lease Obligations of the Borrower and its Subsidiaries incurred after the Closing Date to finance Consolidated Capital Expenditures permitted by Section 7.12; provided that (A) the aggregate amount of all such Indebtedness does not exceed $3,000,000 at any time outstanding, (B) the Debt when incurred shall not be more than 100% of the lesser of the cost or fair market value as of the time of acquisition of the asset financed, (C) such Indebtedness is issued and any Liens securing such Indebtedness are created concurrently with the acquisition of the asset financed and (D) no Lien securing such Indebtedness shall extend to or cover any property or asset of any the Borrower or any Subsidiary other than the asset so financed;
(vi) Indebtedness of the Borrower or its Subsidiaries secured by Liens permitted by Section 7.01(xi) and any other Indebtedness of a Person that, in either case, becomes a Restricted Subsidiary (whose Equity Interests 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 in a Permitted Acquisition which is acquired or assumed by the Borrower or a Subsidiary of the Borrower in such Permitted Acquisition and any Restricted Subsidiary, in each case after the Funding Date as the result of a Permitted AcquisitionRefinancing thereof; provided that:
that (A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created incurred in connection with, or in anticipation thereof,
of, such Permitted Acquisition and (B) such Indebtedness is (other than pre-existing Attributable Indebtedness and Purchase Money Indebtedness) does not guaranteed constitute indebtedness for borrowed money;
(vii) (A) contingent liabilities in respect of any respect indemnification, adjustment of purchase price, earn-out, non-compete, consulting, deferred compensation and similar obligations of the Borrower and its Subsidiaries incurred in connection with Permitted Acquisitions and Dispositions and (B) Indebtedness incurred by the Borrower or any Restricted Subsidiary its Subsidiaries in a Permitted Acquisition or Dispositions under agreements providing for earn-outs or the adjustment of the purchase price or similar adjustments;
(viii) 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 that (A) such Indebtedness (other than any such Person that so becomes a Restricted Subsidiary credit or purchase cards) is the survivor of a merger with such Person or any extinguished within three Business Days of its Subsidiaries),incurrence and (B) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(Cix) Indebtedness representing deferred compensation to employees of the Borrower and its Subsidiaries;
(1x) obligations in respect of performance, stay, customs, appeal and surety bonds and performance and completion guarantees provided by the Stock Borrower or a Subsidiary of such Person is pledged the Borrower in the ordinary course of business or consistent with past practice;
(xi) Indebtedness of the Borrower representing the obligation of the Borrower to make payments with respect to the Administrative Agent to the extent required under Section 10.10(ccancellation or repurchase of certain Equity Interests of officers, employees or directors (or their estates) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement Borrower and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests mayits Subsidiaries, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements of this clause 7.06(iv);
(Cxii) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g), and
(D) after giving effect to Borrower consisting of reimbursement obligations in connection with letters of credit obtained in the assumption ordinary course 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisitionbusiness; provided that:
(A) (1) that the Stock aggregate amount of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guaranteeall reimbursement obligations, the Security Agreement and the Pledge Agreement and delivers any other Security Documentscontingent or otherwise, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as may at the last day of 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 Maturity Date (determined at the time of issuance or incurrence)exceed $2,000,000; and
(Dxiii) unsecured Indebtedness of the Borrower and its Subsidiaries not otherwise permitted by this Section 7.02 incurred after the Closing Date in an aggregate principal amount not to exceed $500,000 at any time outstanding; provided that (A) the credit documentation with respect to such Indebtedness is shall not guaranteed in any respect by contain covenants or default provisions relating to the Borrower or any Subsidiary Guarantor except of the Borrower that are more restrictive than the covenants and default provisions contained in the Loan Documents, and (B) no Default or Event of Default shall have occurred and be continuing immediately before and immediately after giving effect to the extent permitted under Section 11.5;such incurrence.
Appears in 1 contract
Sources: Credit Agreement (Inphonic Inc)
Limitation on Indebtedness. The Borrower will not, and will not permit any None of the Restricted Subsidiaries to, Group Companies shall create, incur, assume or suffer to exist any Indebtedness other than except Indebtedness described in any of the followingfollowing clauses:
(a) Indebtedness arising under of the Credit DocumentsBorrower and any Group Company outstanding on the Closing Date and disclosed on Schedule 7.01 (collectively, the “Existing Indebtedness”) and any Permitted Refinancing;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes Loan Parties under this Agreement and any fees, underwriting discounts, premiums and the other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessLoan Documents;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to Indebtedness of the Borrower or its Restricted Domestic Subsidiaries so long as secured by Liens permitted by clauses (p), (q) and (r) of Section 7.02 and any other Indebtedness of a Person whose Equity Interests or assets are acquired in a Permitted Acquisition which is acquired or assumed by the Borrower or a Domestic Subsidiary of the Borrower in such Permitted Acquisition and any Permitted Refinancing thereof; provided that such Indebtedness is evidenced by an intercompany note was not incurred in connection with, or in anticipation of, the events described in such clauses and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and such Indebtedness does not giving rise to material adverse tax consequencesconstitute Indebtedness for borrowed money;
(d) unsecured Subordinated Indebtedness of the Borrower or any of its Domestic Subsidiaries that is issued to a seller of assets or Person acquired in a Permitted Acquisition and any Permitted Refinancing thereof if, immediately prior to and after giving effect thereto, no Event of Default shall exist or result therefrom;
(e) (A) contingent liabilities in respect of any bankers’ acceptanceindemnification, bank guaranteesadjustment of purchase price, letter earn-out, non-compete, consulting, deferred compensation and similar obligations of credit, warehouse receipt the Borrower and its Subsidiaries incurred in connection with Permitted Acquisitions and (B) Indebtedness incurred by the Borrower or its Subsidiaries in a Permitted Acquisition under agreements providing for earn-outs or the adjustment of the purchase price or similar facilities entered into in the ordinary course of business adjustments;
(including in respect of workers compensation claims, health, disability or other employee benefits or f) Indebtedness owed to any Person providing property, casualty or liability insurance to the Borrower or self-any Domestic Subsidiary of the Borrower, so long as such Indebtedness shall not be in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance or other for the year in which such Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims)is incurred and such Indebtedness shall be outstanding only during such year;
(eg) subject to compliance with Section 11.5, Guarantee Obligations incurred Indebtedness consisting of Guarantees by (i) Restricted the Borrower or by Domestic Subsidiaries in respect of Indebtedness of the Borrower of Indebtedness, leases or other Restricted Subsidiaries that is ordinary course obligations permitted to be incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may notby, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower or obligations in respect of Permitted Acquisitions or Permitted Joint Ventures of, the Borrower or Domestic Subsidiaries of the Borrower;
(h) Indebtedness arising from the honoring by a bank or other financial institution of Restricted Subsidiaries that is permitted to be incurred under this Agreementa check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that (A) if the such Indebtedness being guaranteed under this Section 11.1(e(other than credit or purchase cards) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee extinguished within three Business Days of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness its incurrence and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or such Indebtedness under clause (b) 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) incurred in the ordinary course of business in respect of obligations of (credit or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)purchase cards in extinguished within 60 days from its incurrence;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets representing deferred compensation 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 Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each employees of the foregoing subclauses (i) Borrower 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Domestic Subsidiaries) or Indebtedness attaching to the assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) additional Indebtedness of the Borrower and its Domestic Subsidiaries not otherwise permitted by this Section 7.01 incurred after the Closing Date in an aggregate principal amount not to finance a Permitted Acquisitionexceed $3,000,000 at any time outstanding; provided that:
that (A) no Default or Event of Default shall have occurred and be continuing immediately before and immediately after giving effect to such incurrence and (1B) the Stock of the Person acquired is pledged Borrower shall have delivered to the Administrative Agent to the extent required under a certificate confirming compliance with clause (ii) of Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.107.12;
(Bk) after giving effect to Indebtedness owing from the incurrence of Borrower or any such Indebtedness, to such acquisition and Subsidiary to any related pro forma adjustment, the other Subsidiary or Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect Guarantees made by the Borrower or any Subsidiary Guarantor except of Indebtedness of any other Subsidiary or the Borrower; provided that the aggregate Indebtedness and Guarantees outstanding at any time from a Group Party to a Subsidiary that is not a Loan Party (or in support of such Indebtedness) shall not exceed the extent permitted Available Amount; and
(l) Indebtedness evidenced by Capital Lease Obligations, deferred purchase price, industrial revenue bonds or similar financing or purchase money or other Indebtedness entered into in order to acquire or finance assets used or useful in the business of the Borrower and its Subsidiaries, which Indebtedness, when aggregated with the principal amount of all Indebtedness incurred under Section 11.5;this clause (l), does not exceed $1,500,000 at any time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Fairchild Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, to create, incur, assume issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under (i) the Credit Documents, including pursuant to Sections 2.14 and 2.15 hereof and any Credit Agreement Refinancing Indebtedness and (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 Permitted Refinancing Indebtedness in respect thereof;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its any Restricted Subsidiaries Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is not a Subsidiary Guarantor shall (x) be evidenced by the Intercompany Note or (y) otherwise be outstanding on the Effective Date so long as such Indebtedness is evidenced by an intercompany note and the Intercompany Note or otherwise subject to subordination terms acceptable substantially identical to the subordination terms set forth in Exhibit N within 60 days of the Effective Date or such later date as the Administrative AgentAgent shall reasonably agree, in each case, to the extent permitted by Requirements of Applicable Law and not giving rise to material adverse tax consequences, (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;
(di) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of workers 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 workers’ compensation claims)) and (ii) Indebtedness supported by Letters of Credit in an amount not to exceed the Stated Amount of such Letters of Credit;
(ed) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);distribution partners; 161 LPL – Conformed A&R Credit Agreement
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the proceeds of which are used to finance the acquisition, lease, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance or otherwise issued or incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is issued or incurred concurrently with or within 270 days after the applicable acquisition, lease, construction, lease, repair, replacement expansionreplacement, expansion or improvement of such fixed or capital assets; (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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 Covenants, as such covenants are 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 is not issued or incurred to Refinance acquire Capital Stock of any such Indebtedness;
Person and (hii) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(g), and
(D) after giving effect to the assumption incurrence or issuance 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 Pro Forma Basis with the Financial Performance Covenants, covenants set forth in Sections 10.9 and 10.10 as such covenants are recomputed as at the last day 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 assumption incurrence (and acquisition transaction) had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the followingforegoing, the limitations set forth in the immediately preceding paragraph shall not apply to any of the following items:
(a) Indebtedness arising under the Credit DocumentsDocuments (including any Indebtedness incurred pursuant to Section 2.14);
(b) subject to compliance with Section 10.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued Borrower or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and the Intercompany Subordinated Note 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of construction and restoration activities and 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);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e10.1(d) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(d) 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 Indebtedness, (B) no guarantee [Reserved] and (C) the aggregate amount of Guarantee Obligations incurred by any Restricted Subsidiaries that are not Subsidiary of any Permitted Additional Debt (or Indebtedness Guarantors under this clause (bd), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Section 10.1(j) above) and Section 10.1(n), shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Obligations substantially on the terms set forth in the Guaranteenot exceed $200,000,000 at any time outstanding;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business (including in respect of construction or restoration activities) in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv10.5(d), (viii10.5(g), (xv10.5(i), (xvi10.5(q), 10.5(t) and (xvii10.5(v);
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofto finance the purchase price, or assumed in connection withcost of design, the acquisition, construction, leaserepair, repairrestoration, replacement, expansion expansion, installation or improvement of fixed or capital assets to finance or otherwise in respect of Capital Expenditures, so long as such Indebtedness, except in the case of Environmental CapEx or Necessary CapEx, is incurred within 270 days of the acquisition, construction, lease, repair, replacement restoration, replacement, expansion, installation or improvement of such fixed or capital assets; assets or incurrence of such Capital Expenditure, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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) above; provided, that the aggregate amount of Indebtedness incurred pursuant to this clause (iii) at any time outstanding shall not exceed $400,000,000 and (iv) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i), the Borrower shall be in compliance on a pro forma basis after giving effect (ii) or (iii) above; provided that, except to the incurrence extent otherwise expressly permitted hereunder, the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus the reasonable amounts paid in respect of fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the Closing Date listed on Schedule 10.1 and the Prepetition Debt and any modification, replacement, refinancing, refunding, renewal or extension thereof; provided that except to the extent otherwise expressly permitted hereunder, in the case of any such modification, replacement, refinancing, refunding, renewal or extension, (i) the principal amount thereof (including any unused commitments) does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus the reasonable amounts paid in respect of fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension, (ii) the direct and contingent obligors with respect to such Indebtedness are not changed (iii) no portion of such Indebtedness with matures prior to the Financial Performance Covenants, Stated Maturity of such Indebtedness as such covenants are recomputed in effect 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); Closing Date and (iiiiv) if the Indebtedness being refinanced, or any Permitted Refinancing guarantee thereof, constituted subordinated Indebtedness, then such replacement or refinancing Indebtedness, or such guarantee, respectively, shall be subordinated to the Obligations to substantially the same extent (it being understood that an Incremental Amendment may provide, without the consent of any other Lender required, for restrictions similar and in addition to those set forth in this Section 10.1(g)(iv) on modification, replacement, refinancing, refunding, renewal or extension of Indebtedness issued which matures on or incurred to Refinance any after the Maturity Date but on or before the final maturity date for the Incremental Term Loans in such IndebtednessIncremental Amendment);
(h) Indebtedness outstanding on in respect of Hedging Agreements; provided that (i) other than in the Funding Date listed on Schedule 11.1 case of Commodity Hedging Agreements, such Hedging Agreements are not entered into for speculative purposes (as determined by the Borrower in its reasonable discretion acting in good faith) and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessspeculative Commodity Hedging Agreements must be entered into in the ordinary course of business and shall be consistent with past practice;
(i) [reserved];
(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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Limitation on Indebtedness. The Borrower will (a) Subject to clause (b) and (c) below, the Company covenants and agrees that until the payment in full of all Senior Secured Credit Facilities (other than surviving obligations thereunder) and the termination of all commitments to lend thereunder, the Company shall not, and will shall not permit any of the Restricted Subsidiaries Subsidiary Guarantors to, directly or indirectly, create, incur, assume or issue, assume, guarantee, suffer to exist or otherwise become directly or indirectly liable, contingently or otherwise with respect to any Indebtedness other than the followingIndebtedness, except for:
(ai) Indebtedness arising under the Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Secured Credit Facilities;
(ii) Indebtedness hereunder and otherwise in respect of the 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 Refinance such Indebtednessthereof;
(ciii) Intercompany loans Indebtedness existing as of the Issue Date and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness which is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent not otherwise permitted by Requirements of Law this Section 5.14(a), the Existing Notes and not giving rise to material adverse tax consequencesPermitted Refinancing Indebtedness thereof;
(div) unsecured Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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) incurred in the ordinary course of business of the Company and the Subsidiary Guarantors in respect of obligations open accounts extended by suppliers on normal trade terms in connection with purchases of goods and services which are not overdue for a period of more than ninety (90) days or, if overdue for more than ninety (90) days, as to which a dispute exists and adequate reserves in conformity with GAAP have been established on the books of the Company or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) such Subsidiary Guarantor and (xvii)B) in respect of performance, surety or appeal bonds, bid bonds and similar obligations provided in the ordinary course of business, but excluding (in each case) Indebtedness incurred through the borrowing of money or Contingent Liabilities in respect thereof;
(iv) Indebtedness (including Indebtedness arising under Capital LeasesA) evidencing the deferred purchase price of newly acquired property or incurred within 270 days of, or assumed in connection with, the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed or capital assets to finance the acquisition, constructionreplacement or construction of any property of the Company and the Subsidiary Guarantors (pursuant to purchase money mortgages or otherwise, leasewhether owed to the seller or a third party), repairprovided, that such Indebtedness is incurred within one hundred twenty (120) days after such acquisition, replacement expansion, or improvement construction of such fixed or capital assets; (ii) Indebtedness arising under Capital Leasesproperty, other than (A) Capital Leases in effect on the Funding Date and (B) Capital Leases entered into pursuant Capitalized Lease Obligations, and, with respect to subclause (i) above (provided that, in the case of each of the foregoing subclauses clause (iA) and (iiB), the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 thereof; provided, that the aggregate amount of all Indebtedness outstanding pursuant to Refinance this clause (a)(v) shall not at any such Indebtednesstime exceed $2,875,000;
(hvi) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 intercompany Indebtedness of the type that could have been incurred under Section 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower Company or any Subsidiary Guarantor except owing to the extent permitted under Section 11.5Company or any other Subsidiary Guarantor; provided that such Indebtedness is evidenced in each case by a promissory note;
Appears in 1 contract
Sources: Indenture (Teligent, Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries toNo Obligor (other than ILFC) may incur, create, incurissue, assume assume, guarantee or suffer to exist otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, whether present or future, any Indebtedness other than (i) in the following:
(a) case of the Obligors, Indebtedness arising under the Credit Loan Documents;
, (b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(dii) Indebtedness in respect of guarantees by any bankers’ acceptanceBorrower Party of any obligation of any Obligor (other than of ILFC or Parent Holdco); (iii) Leases and obligations to Lessees, bank guaranteestrustees and others under the Leases, letter of credittrust agreements and other documents related thereto, warehouse receipt including any Indebtedness owed to any Lessee under any such agreement or similar facilities entered into in the ordinary course of business (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 Lease with respect to reimbursement-type obligations regarding workers compensation claims);
maintenance contributions, redelivery condition adjustment payments or any other obligation of any Subsidiary Holdco, Intermediate Lessee or Owner Subsidiary to a Lessee; (eiv) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted any Obligor owed to be incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) ILFC and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this AgreementPledged Debt; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligationsthat, 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 no such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) 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) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding Date and (B) Capital Leases entered into pursuant to subclause (i) above (provided thatunless, in the case of each of the foregoing subclauses (i) and (ii)any Pledged Debt Collateral, the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Debt Collateral has been pledged to the Administrative Collateral Agent to for the extent required under Section 10.10(c) and (2) such Person executes a supplement to each benefit of the Guarantee, Secured Parties pursuant to the Security Agreement and the Pledge AgreementCollateral Agent has a first priority perfected security interest in such Pledged Debt Collateral and (z) in the case of any Pledged Debt Collateral, in each case such Pledged Debt Collateral is evidenced by an Instrument which has been delivered and indorsed to the extent Collateral Agent; (v) Indebtedness required under Section 10.10in connection with repossession of an Aircraft or any Engine (as defined in the Security Agreement); provided that and (vi) Indebtedness in favor of the assets covered issuer of a surety, letter of credit or similar instrument to be obtained by such pledges and security interests mayany Subsidiary Holdco, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed Intermediate Lessee or Owner Subsidiary in connection with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements repossession or detention of this clause (C) shall not apply to any Indebtedness of the type that could have been incurred an Aircraft or other enforcement action under Section 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Lease.
Appears in 1 contract
Sources: Term Loan Credit Agreement (International Lease Finance Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the followingforegoing, the limitations set forth in the immediately preceding paragraph shall not apply to any of the following items:
(a) Indebtedness arising under the Credit DocumentsDocuments (including any Indebtedness incurred pursuant to Section 2.14);
(b) subject to compliance with Section 10.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued Borrower or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and the Intercompany Subordinated Note 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of construction and restoration activities and 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);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e(d) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e(d) 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 Indebtedness, (B) no guarantee [reserved] and (C) the aggregate amount of Guarantee Obligations incurred by any Restricted Subsidiaries that are not Subsidiary of any Permitted Additional Debt (or Indebtedness Guarantors under this clause (bd), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Section (j) above) and Section (n), shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of the Obligations substantially on the terms set forth in the Guaranteenot exceed $200,000,000 at any time outstanding;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business (including in respect of construction or restoration activities) in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv10.5(d), (viii10.5(g), (xv10.5(i), (xvi10.5(q), 10.5(t), 10.5(v) and (xvii10.5(ff); provided that such Investments permitted by Section 10.5(ff) must be in a Subsidiary of the Borrower;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofto finance the purchase price, or assumed in connection withcost of design, the acquisition, construction, leaserepair, repairrestoration, replacement, expansion expansion, installation or improvement of fixed or capital assets to finance or otherwise in respect of Capital Expenditures, so long as such Indebtedness, except in the case of Environmental CapEx or Necessary CapEx, is incurred within 270 days of the acquisition, construction, lease, repair, replacement restoration, replacement, expansion, installation or improvement of such fixed or capital assets; assets or incurrence of such Capital Expenditure, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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) above; provided, that the aggregate amount of Indebtedness incurred pursuant to this clause (iii) at any time outstanding shall not exceed $400,000,000 and (iv) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i), the Borrower shall be in compliance on a pro forma basis after giving effect (ii) or (iii) above; provided that, except to the incurrence extent otherwise expressly permitted hereunder, the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus the reasonable amounts paid in respect of fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the Closing Date listed on Schedule 10.1 and the Prepetition Debt and any modification, replacement, refinancing, refunding, renewal or extension thereof; provided that except to the extent otherwise expressly permitted hereunder, in the case of any such modification, replacement, refinancing, refunding, renewal or extension, (i) the principal amount thereof (including any unused commitments) does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus the reasonable amounts paid in respect of fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension, (ii) the direct and contingent obligors with respect to such Indebtedness are not changed, (iii) no portion of such Indebtedness with matures prior to the Financial Performance Covenants, Stated Maturity of such Indebtedness as such covenants are recomputed in effect 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); Closing Date, and (iiiiv) if the Indebtedness being refinanced, or any Permitted Refinancing guarantee thereof, constituted subordinated Indebtedness, then such replacement or refinancing Indebtedness, or such guarantee, respectively, shall be subordinated to the Obligations to substantially the same extent (it being understood that an Incremental Amendment may provide, without the consent of any other Lender required, for restrictions similar and in addition to those set forth in this Section 10.1(g)(iv) on modification, replacement, refinancing, refunding, renewal or extension of Indebtedness issued which matures on or incurred to Refinance any after the Maturity Date but on or before the final maturity date for the Incremental Term Loans in such IndebtednessIncremental Amendment);
(h) Indebtedness outstanding on in respect of Hedging Agreements; provided that (i) other than in the Funding Date listed on Schedule 11.1 case of Commodity Hedging Agreements, such Hedging Agreements are not entered into for speculative purposes (as determined by the Borrower in its reasonable discretion acting in good faith) and (ii) any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessspeculative Commodity Hedging Agreements must be entered into in the ordinary course of business and shall be consistent with past practice;
(i) [reserved];
(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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) any Restricted Subsidiary to the Borrower or its any other Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.12, (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each of the foregoing subclauses (i) and above, provided that the aggregate amount of Indebtedness incurred pursuant to this subclause (ii)) shall not exceed $5,000,000 at any time outstanding, the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i) or incurred (ii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder, and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on in respect of Hedge Agreements;
(i) Indebtedness in respect of the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessContingent Payment Securities;
(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 Funding Closing Date as the result of a Permitted Acquisition; , provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),
, and (C) (1y)(A) the Stock Borrower pledges the capital stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) and 9.12, (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case Guarantee to the extent required under Section 10.10; provided that 9.11 and (C) if any such Indebtedness is secured, (1) the assets covered by such pledges and security interests may, Guarantee referred to in the extent permitted by Section 11.2, preceding subclause (B) is equally and ratably secure secured or (2) in the case of assets acquired by the Borrower or any Restricted Subsidiary, the Borrower’s obligations hereunder or such Indebtedness assumed with Restricted Subsidiary’s Guarantee, as the Secured Parties subject to intercreditor arrangements in form case may be, are equally and substance reasonably satisfactory to the Administrative Agent; providedratably secured, further, provided that the requirements of this clause subclause (Cy) shall not apply to an aggregate amount at any Indebtedness time outstanding of up to (and including) $20,000,000 of the type that could have been aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness incurred under Section 11.1(g)clause (k) below, and
(D) after giving effect to when taken together, does not exceed $40,000,000 in the assumption of aggregate at any such Indebtednesstime outstanding, 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness incurred specified in subclause (i) above, provided that, except to Refinance the extent otherwise permitted hereunder, (x) the principal amount of any such IndebtednessIndebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(j) (i) Indebtedness of the Borrower or any Restricted Subsidiary incurred to finance a Permitted Acquisition; , provided that:
that (Ax) such Indebtedness is not guaranteed in any respect by any Restricted Subsidiary (1other than any Person acquired (the “acquired Person”) as a result of such Permitted Acquisition or the Restricted Subsidiary so incurring such Indebtedness) or, in the case of Indebtedness of any Restricted Subsidiary, by the Borrower, (y)(A) the Stock Borrower pledges the capital stock of the such acquired Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and 9.12, (2B) such acquired Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, Guarantee to the extent required under Section 10.10;
9.11 and (C) if a guarantee by such acquired Person of any such Indebtedness is secured by assets of such acquired Person, the Guarantee referred to in the preceding subclause (B) after giving effect is equally and ratably secured, provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to (and including) $20,000,000 of the incurrence aggregate of (1) such Indebtedness and (2) all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, and (z) the aggregate amount of such Indebtedness and all Indebtedness assumed or permitted to exist under clause (j) above, when taken together, does not exceed $40,000,000 in the aggregate at any time outstanding, and (ii) any refinancing, refunding, renewal or extension of any such IndebtednessIndebtedness specified in subclause (i) above, 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 Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test Period;
provided that (Cx) the maturity principal amount of any such Indebtedness is not earlier thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon any event of defaulty) is required prior tothe direct and contingent obligors with respect to such Indebtedness are not changed, 91 days after except to the Maturity Date (determined at the time of issuance or incurrence)extent otherwise permitted hereunder; and
(Dl) such (i) additional Indebtedness, provided that the aggregate amount of Indebtedness is incurred and remaining outstanding pursuant to this clause (l) shall not guaranteed at any time exceed $30,000,000 and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;subclause (i) above.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as as, during a Guarantor Release Period and reasonably promptly after request by the Administrative Agent, such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by of (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e10.1(d) 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 of any Permitted Additional Debt (or Indebtedness under clause (bg) abovebelow) 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)sublicensees;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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), (1) if such Capital Lease is incurred during an Interim Covenant Period, the aggregate amount of all such Capital Leases does not exceed $100,000,000 and (2) if such Capital Lease is incurred during any period other than during an Interim Covenant Period, the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness Pro Forma Basis with the Financial Performance Covenants, as such covenants are 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;; 10-Q
(hg) Indebtedness outstanding on the Funding Closing Date listed on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(h) during any period other than during an Interim Covenant Period, (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 Funding Closing Date as the result of a Permitted Acquisitiontransaction permitted under this Agreement; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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),, and
(C) (1) the Stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Pro Forma Basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Sections 2.16 and 2.17 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness);
(b) Indebtedness (including Guarantee Obligations thereunder) (meeting the definition of Permitted Additional Debt) including in respect of the Senior Unsecured Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and in an aggregate principal amount outstanding not to exceed $2,000,000,000 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(c) Intercompany loans Indebtedness (including Guarantee Obligations thereunder) (meeting the definition of Permitted Additional Debt) including in respect of the Senior Secured Notes and advances made by the Senior Secured Term Loan Facility (and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing) in an aggregate principal amount outstanding not in excess of $1,500,000,000 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(d) Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries any Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is 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 and substantially in the form of Exhibit I or otherwise subject to subordination terms acceptable substantially identical to the Administrative Agentsubordination terms set forth in Exhibit I, in each case, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, (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;
(de) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ef) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e10.1(f) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.110.1) 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 11.1(e10.1(f) 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 of any Permitted Additional Debt (or Indebtedness under clause (b) or clause (c) 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;
(fg) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees sub-licensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv10.5(d), (viiig), (xvh), (xvi) and i), (xviiq), (r)and (s);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred prior to or within 270 days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) 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 Funding 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 Pro Forma Compliance immediately after giving effect to the incurrence of such Indebtedness with (and the Financial Performance Covenants, as such covenants are recomputed as at the last day use of the most recently ended Test Period as if such incurrence had occurred on the first day of such Test Periodproceeds thereof); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(hi) Indebtedness outstanding on the Funding Date listed date hereof (provided that any Indebtedness that is in excess of $1,000,000 individually shall only be permitted under this clause (i) to the extent such Indebtedness is set forth on Schedule 11.1 10.1) and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(j) 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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Equity Interests of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge AgreementAgreement and a joinder to the Intercompany Note, in each case to the extent required under Section 10.109.11; provided that the assets covered by such pledges and security interests may, at the option of the Borrower, to the extent permitted by Section 11.210.2, equally and ratably secure such Indebtedness assumed with the 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) C shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(g), and
(D) immediately after giving effect to the assumption of any such Indebtedness, to such acquisition and to any related pro forma adjustmenttransactions, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test PeriodPro Forma Compliance;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j1) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock Equity Interests of the such Person acquired in such Permitted Acquisition, if any, is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c9.11(b) and (2) such Person executes a supplement supplements to each of the Guarantee, the Security Agreement Guarantee and the Pledge Agreement applicable Security Agreements and delivers any other Security Documentsa joinder to the Intercompany Note, in each case, case to the extent required under Section 10.109.11;
(B) immediately after giving effect to the incurrence of any such Indebtedness, to such acquisition and to any related pro forma adjustmenttransactions, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test PeriodPro Forma Compliance;
(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 any respect by the Borrower or any Subsidiary Guarantor except to the extent (1) such guarantee is permitted under Section 11.510.5 and (2) that after giving effect to the incurrence of any such Indebtedness, such acquisition and any related transactions, the Borrower shall be in Pro Forma Compliance;
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Section 2.16 and including the Obligations);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness[reserved];
(c) Intercompany loans and advances made by Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its Restricted Subsidiaries so long as any Subsidiary; provided that such Indebtedness is evidenced by an intercompany note shall be unsecured and subject to subordination terms acceptable subordinated to the Administrative AgentObligations pursuant to the Intercompany Note, (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 Requirements of Law and Section 10.5, any Subsidiary that is not giving rise a Guarantor owing to material adverse tax consequencesthe Borrower or any Guarantor;
(d) Indebtedness in respect of any bankers’ acceptanceacceptances, bank guarantees, letter letters of credit, warehouse receipt receipts or similar facilities instruments entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims); provided that any reimbursement obligations in respect thereof are reimbursed within thirty (30) days following the incurrence thereof;
(e) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 Guarantor may not, by virtue of this Section 11.1(e) 10.1(e), guarantee Indebtedness that such Restricted Subsidiary could not otherwise itself incur or is expressly prohibited from guaranteeing under this Section 11.110.1) 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 11.1(e10.1(e) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of the Obligations pursuant to a Subordination Agreement 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 of any Permitted Additional Debt (or Indebtedness under clause (bh) above) of this Section 10.1 or Other Debt 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) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees or (ii) subject to clauses (e)(A) and (B) of this Section 10.1, otherwise constituting Investments permitted by Sections 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (n) and (xviiq);
(g) (i) Indebtedness (including Indebtedness arising under Capital Capitalized Leases) incurred substantially concurrently or within 270 one hundred eighty (180) days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) to finance the acquisition, construction, lease, repair, replacement 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Sources: Credit Agreement (Infinity Natural Resources, Inc.)
Limitation on Indebtedness. The Borrower (A) Holdings will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Loan Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect any Loan Party to another Loan Party, (ii) of the Senior Notes any Non-Subsidiary Loan Party to any other Non-Subsidiary Loan Party and (iii) subject to Section 6.05(g), Indebtedness of any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and Non-Subsidiary Loan Party to any Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessLoan Party;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guaranteesacceptance (other than a bankers’ acceptance issued in respect of borrowed money), letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) except as provided in clause (j) below, subject to compliance with Section 11.56.05(g), Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower Holdings 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower Holdings in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that there shall be no Guarantee (Aa) if by any Restricted Subsidiary that is not a Guarantor of any Indebtedness of a Borrower or any Guarantor and (b) in respect of Indebtedness under the Indebtedness being guaranteed under this Section 11.1(e) Existing Senior Notes and the Existing Senior Subordinated Notes and Permitted Additional Notes (and, in each case, any Permitted Refinancing thereof), unless such Guarantee is subordinated to made by a Guarantor and such Guarantee is unsecured; provided, further, that in the Obligations, event such Guarantee Obligations are incurred in respect of Subordinated Indebt- edness, then such Guarantee Obligation shall be subordinated to the Guarantee right of payment 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 Guaranteesame extent;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, before or assumed in connection with, after the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures (it being understood that the Canadian Borrower may determine in good faith the purpose for which Indebtedness was incurred), (ii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date and (Biii) Capital Leases entered into pursuant to subclause any refinancing, refunding, renewal or extension of any Indebtedness under this clause (f), provided that (i) the principal amount thereof (not including any reasonable prepayment premiums, fees, costs and expenses) is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder; provided that the aggregate amount of Indebtedness incurred pursuant to this clause (f) shall not exceed $150.0 million at any time outstanding;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 6.01 (other than as set forth in clause (p) below) and any refinancing, refunding, renewal or extension thereof; provided that, in the case of each of the foregoing subclauses that (i) the principal amount thereof (not including any reasonable prepayment premiums, fees, costs and expenses) is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii)) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness in respect of Swap Agreements entered into for bona fide (non-speculative) business purposes;
(i) (a) Indebtedness of the Borrowers and the Guarantors not otherwise permitted under this Section 6.01; provided that (i) both immediately prior to and after giving effect thereto, the Borrower no Default or Event of Default shall be in compliance exist or result therefrom, (ii) Holdings shall, on a pro forma basis after giving effect to the incurrence and application of the proceeds of such Indebtedness Indebtedness, be in compliance with the Financial Performance CovenantsCovenant, (iii) as such covenants are recomputed as at the last day of the most recently ended date any such Indebtedness is incurred, on a pro forma basis after giving effect to the incurrence and application of the proceeds of such Indebtedness, the Total Leverage Ratio for the Test Period as if immediately preceding such date shall be less than or equal to 7.00 to 1.00, (iv) in the case of Indebtedness that is secured equally and ratably with the Obligations, on a pro forma basis after giving effect to the incurrence had occurred on and application of the first day proceeds of such Test Period); Indebtedness, the Senior Secured Leverage Ratio shall be less than or equal to 4:00 to 1:00, and (iiiv) in the case of Indebtedness that is subordinated in lien priority to the Obligations, on a pro forma basis after giving effect to the incurrence and application of the proceeds of such Indebtedness, the Senior Secured Leverage Ratio shall be less than or equal to 5:00 to 1:00 and (b) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessthereof;
(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 Holdings or any Restricted Subsidiary, in each case after the Funding Closing Date as the result of a Permitted Acquisition, so long as (1) both immediately prior to and after giving effect thereto, no Default or Event of Default shall exist or result therefrom and (2) Holdings shall, on a pro forma basis after giving effect to the incurrence and application of proceeds of such Indebtedness, be in compliance with the Financial Performance Covenant; provided that:
that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower Holdings or any Restricted Subsidiary (other than by any such Person person that so becomes a Restricted Subsidiary or is Subsidiary) and other than with respect to Indebtedness in an aggregate amount not to exceed the survivor of a merger with Guarantee and Collateral Exception Amount at such Person or any of its Subsidiaries),
time (C) (1y)(A) the Stock capital stock of such Person is pledged to the Administrative Agent Agent, as applicable, to the extent required under Section 10.10(c) 5.10 and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement Agreements and the Pledge AgreementAgreements (or alternative guarantee and security arrangements in relation to the Obliga- tions reasonably acceptable to the Administrative Agent, in each case as applicable) to the extent required under Section 10.105.10 and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding (other than increases to cover any reasonable prepayment premiums, fees, costs and expenses) immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed, except to the extent otherwise permitted hereunder;
(k) [Reserved];
(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, including those incurred to secure health, safety, environmental and regulatory obligations in the ordinary course of business;
(i) Indebtedness incurred in connection with any Permitted Sale Leaseback (provided that the Net Cash Proceeds thereof are promptly applied to the extent required by Section 2.12(c)) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above; provided that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding (not including any reasonable prepayment premiums, fees, costs and expenses) immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(n) additional Indebtedness; provided that the assets covered by aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (n) shall not at any time exceed $100.0 million at any time outstanding;
(o) Indebtedness (including Indebtedness arising under Capital Leases) incurred in connection with project financings and export credit financings (it being understood that the Canadian Borrower may determine in good faith the purpose for which Indebtedness was incurred) and any refinancing, refunding, renewal or extension of any such pledges Indebtedness; provided that the aggregate amount of Indebtedness incurred pursuant to this clause (o) shall not exceed $700.0 million at any time outstanding;
(p) Indebtedness in respect of the Existing Senior Notes and security interests maythe Existing Senior Subordinated Notes and any Permitted Refinancing of the Existing Senior Notes or the Existing Senior Subordinated Notes; provided that with respect to any Permitted Refinancing of the Existing Senior Subordinated Notes, clause (c) of the definition of “Permitted Refinancing” need not be satisfied if, (i) on a pro forma basis after giving effect to the extent permitted by Section 11.2incurrence and application of proceeds of such Permitted Refinancing Indebtedness, equally and ratably secure the Total Leverage Ratio for the Test Period immediately preceding such date shall be less than or equal to 7.00 to 1.00 or (ii) the amount of the Permitted Refinancing Indebtedness assumed with in respect of the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to Existing Senior Subordinated Notes shall not exceed the Administrative AgentApplicable Amount; provided, further, that with respect to any Permitted Refinancing of the requirements of this Existing Senior Notes or the Existing Senior Subordinated Notes, clause (Cb) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g)definition of “Permitted Refinancing” need not be satisfied if such modified, and
(D) after refinanced, refunded, renewed or extended Indebtedness has a Weighted Average Life to Maturity equal to or longer than the Weighted Average Life to Maturity of the Term B Loans giving effect to the assumption of any such Indebtedness, to such acquisition and to any related pro forma adjustment, the Borrower shall be springing maturity date set forth in compliance on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day clause (c) of the most recently ended Test Period as if such assumption and acquisition had occurred on definition of “Term B Loan Maturity Date” corresponding to the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtednessdescribed in this proviso;
(j) (i) Indebtedness incurred consisting of Mezzanine Securities issued pursuant to finance Section 6.12(h)(a) (or existing on the Closing Date), (ii) Indebtedness consisting of a Permitted Acquisitionnote not to exceed $150,000,000 in initial principal amount to be issued by the Canadian Borrower to Red Isle Private Investments Inc., a subsidiary of PSP (the “PSP Note”), in connection with the PSP Note Transaction plus any accrued interest thereon and (iii) any refinancings of the foregoing so long as (x) the principal amount of such refinancing shall not exceed the principal amount of such Mezzanine Securities or PSP Note, as applicable, being refinanced together with any accrued interest and fees (including any amendment or consent fees thereon) and (y) such refinancing shall, as determined by the Canadian Borrower in good faith, have terms material to the inter- ests of the Lender no materially less advantageous to the Lenders than the existing terms of the such Mezzanine Securities or PSP Note, as applicable, being refinanced; provided that:and
(Ar) (1) the Stock Indebtedness in respect of the Person acquired is pledged to the Administrative Agent Permitted Additional Notes to the extent required under that the Net Cash Proceeds therefrom are applied to the prepayment of Term Loans in accordance with Section 10.10(c2.12(c); provided that clause (i)(1) and (2) such Person executes a supplement to each of the Guaranteedefinition of Permitted Additional Notes need not be satisfied so long as the springing maturity set forth in clause (c) of the definition of “Revolving Facility Maturity Date”, the Security Agreement “Term A Loan Maturity Date” and the Pledge Agreement and delivers any other Security Documents, in each case, “Term B Loan Maturity Date” applies with respect to the extent required under Section 10.10;such Permitted Additional Notes.
(B) after giving effect to the incurrence of The Loan Parties will not issue 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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor Disqualified Capital Stock except to the extent it is treated as Indebtedness and otherwise permitted under this Section 11.5;6.01.
Appears in 1 contract
Sources: Credit Agreement (Telesat Canada)
Limitation on Indebtedness. The Borrower RailAmerica will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit DocumentsDocuments (including, the for the avoidance of doubt, any Incremental Loans incurred in accordance with Section 2.15 and any Extended Loans that shall have been converted pursuant to Section 3.1) and any Credit Agreement Refinancing Indebtedness (it being understood that Incremental Loans, Extended Loans and Credit Agreement Refinancing Indebtedness shall only be incurred pursuant to this Section 10.1(a));
(b) subject to compliance with Section 10.5, Indebtedness of (including Guarantee Obligations thereunderi) in respect RailAmerica to any Restricted Subsidiary, (ii) RATC or any Subsidiary Guarantor to RailAmerica or any Restricted Subsidiary, (iii) any Restricted Subsidiary of the Senior Notes RailAmerica which is not RATC or a Subsidiary Guarantor to any other Restricted Subsidiary of RailAmerica which is not RATC or a Subsidiary Guarantor and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection (iv) subject to compliance with the foregoing and requirements of Section 10.5, any Permitted Refinancing Restricted Subsidiary of RailAmerica which is not RATC or a Subsidiary Guarantor to a Credit Party; provided that any Indebtedness issued of any Borrower or incurred any Subsidiary Guarantor that is owed to Refinance such Indebtednessany Restricted Subsidiary which is not RATC or a Subsidiary Guarantor shall be subordinated in right of payment to the Obligations following an Event of Default;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect Subsidiary Guarantors or a Borrower of Indebtedness of the Subsidiary Guarantors or a Borrower or other that is otherwise permitted to be incurred under this Agreement, (ii) Restricted Subsidiaries that are not Subsidiary Guarantors of Indebtedness of Restricted Subsidiaries that are not Guarantors that is otherwise 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (iiiii) subject to compliance with the Borrower requirements of Section 10.5, Borrowers or Subsidiary Guarantors in respect of Indebtedness of Restricted Subsidiaries that are not Subsidiary Guarantors that is otherwise permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) (A) incurred within 270 180 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures and (iiB) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof, and (Bii) Capital Leases entered into pursuant to any one or more successive refinancings, refundings, renewals or extensions of any Indebtedness specified in subclause (i) above (provided that, in the case of each of the foregoing subclauses (i) and or (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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agentabove; provided, further, that the requirements principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension; provided, further, that the aggregate amount of Indebtedness incurred pursuant to this clause Section 10.1(e) (Ctogether with the amount of refinancing Indebtedness in respect thereof) shall not apply to any Indebtedness exceed the greater of the type that could have been incurred under Section 11.1(g), and
(Dx) 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) $80.0 million and (2y) such Person executes a supplement to each 5.0% of the Guarantee, the Security Agreement and the Pledge Agreement and delivers Total Assets at any other Security Documents, in each case, to the extent required under Section 10.10time outstanding;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Limitation on Indebtedness. (a) The Borrower and the Parent Guarantors will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness arising under the Credit Documents;
(bii) Indebtedness of (including Guarantee Obligations thereunderx) in respect the Borrower or any of the Senior Notes and Parent Guarantors to the Borrower, any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with of the foregoing and Parent Guarantors or any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by Subsidiary of the Borrower (including, without limitation, the Permitted Intercompany Indebtedness) and (y) subject to any Restricted Subsidiary or made by compliance with Section 10.5(g), any Restricted Subsidiary to the Borrower or its any of the Parent Guarantors or any other Restricted Subsidiaries so long as Subsidiary of the Borrower; provided that (A) all such Indebtedness is evidenced by owing to a Credit Party shall be subject to a perfected, First Priority Lien pursuant to the Pledge Agreement, and (B) all such Indebtedness shall be unsecured and, if constituting an obligation of a Credit Party, subordinated in right of payment to the payment in full of the Obligations pursuant to the terms of any applicable promissory notes or an intercompany note subordination agreement on terms and subject to subordination terms acceptable conditions no less favorable to the Lenders than the terms and conditions set forth in the Loan and Reimbursement Agreement (as in effect on the date hereof) or otherwise in a manner reasonably satisfactory to Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(diii) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(eiv) except as provided in clauses (x), (xi) and (xiii) below, subject to compliance with Section 11.510.5(g), Guarantee Obligations incurred by (ix) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries that is permitted to be incurred under this Agreement Agreement, (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (iiy) the Borrower or any of the Parent Guarantors in respect of Indebtedness of the Borrower or the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided Agreement and (z) any Foreign Subsidiary in respect of Indebtedness of any other Foreign Subsidiary that (A) if the Indebtedness being guaranteed is permitted to be incurred under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeAgreement;
(fv) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(ivi) (w) Indebtedness of the Borrower or the Restricted Subsidiaries (including Indebtedness arising under Capital LeasesLeases but excluding Indebtedness incurred in connection with Permitted Acquisitions) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets subject to pro forma compliance with Section 10.9, (iix) Indebtedness of the Borrower or the Restricted Subsidiaries arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (y) Indebtedness of the Borrower or the Restricted Subsidiaries arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof and (B) Capital Leases entered into pursuant to subclause (i) above (provided that, in the case of each of the foregoing subclauses (iw) and (ii)x) above; provided, that the Borrower aggregate amount of Indebtedness incurred pursuant to this subclause (y) shall be in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenantsnot exceed $40,000,000 at any time outstanding, as such covenants are 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 (iiiz) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(ivii) (A) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and (B) any Permitted Refinancing Indebtedness incurred to Refinance (in whole or in part) such Indebtedness;
(viii) Indebtedness in respect of Hedge Agreements;
(A) Indebtedness under the Senior Unsecured Notes, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness and (B) Indebtedness under the Senior Subordinated Notes, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(x) (A) 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 Funding Closing Date as the result of a Permitted Acquisition; provided that:
that (Aw) before and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (x) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (By) such Indebtedness is not guaranteed in any respect by the Borrower Borrower, any Parent Guarantor or any Restricted Subsidiary (other than by any such Person person that so becomes a Restricted Subsidiary or is the survivor of a merger with such Person or any of its SubsidiariesSubsidiary),, (z)
(C) (1) the Capital Stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) 9.12 and (2) such Person executes a supplement to each of the Guarantee, the Security Guarantee Agreement and the Pledge Agreement, applicable Security Documents (or alternative guarantee and security arrangements in each case relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 CovenantsSections 9.11 or 9.12, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption applicable, and acquisition had occurred on the first day of such Test Period;
(iiB) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(jxi) (iA) Indebtedness of the Borrower or any Restricted Subsidiary issued or incurred to finance a Permitted Acquisition; provided that:
that (At) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) before and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, (u) the Total Leverage Ratio on a Pro Forma Basis as of the date of such Permitted Acquisition (but excluding any cash or cash equivalents constituting proceeds of such Indebtedness which may otherwise reduce the amount of Consolidated Net Debt for such purpose), shall be less than 6.50 to 1.00, as certified by a certificate from the incurrence Chief Financial Officer or Treasurer (or other equivalent officer) of any the Borrower demonstrating such Indebtednesscompliance in reasonable detail, to such acquisition and to any related pro forma adjustment, (v) the Borrower shall be in compliance compliance, on a pro forma basis Pro Forma Basis, with the Financial Performance CovenantsCovenant, as such covenant are is recomputed as at the last day of the most recently ended recent Test Period for which Section 9.1 Financials have been delivered, as if such incurrence and acquisition had occurred on the first day of such Test Period;
, as certified by a certificate from the Chief Financial Officer or Treasurer (Cor other equivalent officer) of the maturity of Borrower demonstrating such Indebtedness is not earlier thancompliance in reasonable detail, 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 Maturity Date (determined at the time of issuance or incurrence); and
(Dw) such Indebtedness is not guaranteed in any respect by any Parent Guarantor or any Restricted Subsidiary unless such Parent Guarantor or Restricted Subsidiary is a Guarantor (or becomes a Guarantor substantially concurrently with the incurrence of such Indebtedness or guarantee), (x)(1) the Parent Guarantor, the Borrower or such other relevant Credit Party pledges the Capital Stock of any Person acquired (the “acquired Person”) to the Administrative Agent to the extent required under Section 9.12 and (2) such acquired Person executes a supplement to the applicable Guarantee Agreement and the applicable Security Agreements (or alternative guarantee and security arrangements in relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Sections 9.11 or 9.12, as applicable; provided that the requirements of this subclause (x) shall not apply to an aggregate amount at any time outstanding of up to (and including) the amount of the Guarantee and Collateral Exception Amount at such time of the aggregate of (I) such Indebtedness and (II) all other Indebtedness as to which this proviso then applies, (y) such Indebtedness (other than any such Indebtedness constituting Permitted Secured Acquisition Debt) does not have a maturity or have scheduled amortization or payments of principal and is not subject to mandatory redemption or prepayment (except customary asset sale or change of control provisions which allow for the payment of the Obligations prior to such Indebtedness), in each case, prior to six months following the Latest Maturity Date at the time of incurrence of such Indebtedness and will not have a shorter Weighted Average Life to Maturity than the Weighted Average Life to Maturity of any then outstanding Loans, and (z) to the extent such Indebtedness is secured pursuant to Section 10.2(h), (1) the Senior Secured Leverage Ratio, on a Pro Forma Basis as of the date of such Permitted Acquisition, shall not exceed 4.25 to 1.00, as certified by a certificate from the Chief Financial Officer or Treasurer (or other equivalent officer) of the Borrower demonstrating such compliance in reasonable detail and (2) to the extent the Liens securing such Indebtedness are on any assets constituting Collateral, such Indebtedness shall be Permitted Secured Acquisition Debt, and (B) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided further that if such Indebtedness constitutes Permitted Secured Acquisition Debt and the provisions of clause (b) of the definition of Permitted Secured Acquisition Debt are applicable (or Permitted Refinancing Indebtedness in respect thereof), then the applicable margins on the relevant Term Loans described therein shall be increased as provided therein concurrently with the incurrence of such Permitted Secured Acquisition Debt (or Permitted Refinancing Indebtedness in respect thereof);
(xii) Indebtedness in respect of bids, trade contracts (other than for debt for borrowed money), leases (other than Capital Lease Obligations), statutory obligations, surety, bid, stay, customs and appeal bonds, performance, performance and completion and return of money bonds, government contracts, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business (including letters of credit, bank guarantees or similar instruments in lieu of such items to support the issuance thereof);
(xiii) Permitted Additional Junior Debt in an amount not to exceed (i) $35,000,000 plus (ii) any such additional amount so long as (x) the Total Leverage Ratio shall be less than 6.50 to 1.00, determined on a Pro Forma Basis as of the date of incurrence of such Permitted Additional Junior Debt (but excluding any cash or cash equivalents constituting proceeds of such Indebtedness which may otherwise reduce the amount of Consolidated Net Debt for such purpose), and (y) if such Indebtedness is secured on a junior lien, lien subordinated basis with respect to the Obligations, the Senior Secured Leverage Ratio shall be less than 4.25 to 1.00, determined on a Pro Forma Basis as of the date of incurrence of such Permitted Additional Junior Debt (but excluding any cash or cash equivalents constituting proceeds of such Indebtedness which may otherwise reduce the amount of Consolidated Net Debt for such purpose), in each case, as if any such Indebtedness had been outstanding and fully borrowed, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(xiv) Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets (including Capital Stock of Subsidiaries) of the Borrower or any Subsidiary Guarantor except permitted by Section 10.5, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business or assets for the purpose of financing such acquisition;
(xv) Indebtedness consisting of promissory notes issued by the Borrower and its Restricted Subsidiaries to current or former directors, officers, employees, members of management or consultants of such person (or their respective estate, heirs, family members, spouse or former spouse) to finance the purchase or redemption of Capital Stock of Parent or any direct or indirect parent thereof permitted by Section 10.6(b);
(xvi) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protection and similar arrangements, in each case, in connection with cash management and deposit accounts;
(xvii) 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;
(xviii) Indebtedness in respect of letters of credit, bankers’ acceptances supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(xix) without duplication of any other Indebtedness, non-cash accruals of interest, accretion or amortization of original issue discount and/or pay-in-kind interest to the extent such Indebtedness is permitted under Section 11.5hereunder;
(xx) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (i) through (xix);
(xxi) Indebtedness of the Borrower or any Restricted Subsidiary that is unsecured or Indebtedness of a Restricted Foreign Subsidiary that is secured solely by property of Restricted Foreign Subsidiaries in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; and
(xxii) Credit Agreement Refinancing Indebtedness.
(b) Neither the Borrower nor any Parent Guarantor will issue any preferred Capital Stock other than Qualified PIK Securities. The Borrower will not permit any Restricted Subsidiary to issue any preferred Capital Stock to any Person other than the Borrower or the Subsidiary Guarantors (or, in the case of a Restricted Subsidiary not directly owned by the Borrower or a Subsidiary Guarantor, to another Restricted Subsidiary) other than Qualified PIK Securities.
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including pursuant to Sections 2.16 and 2.17);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness[reserved];
(c) Intercompany loans and advances made by [reserved];
(d) Indebtedness of (i) the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary Guarantor owing to the Borrower or its any Restricted Subsidiaries so long as Subsidiary; provided that any such Indebtedness owing by a Credit Party to a Subsidiary that is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agentnot a Guarantor, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesconsequences shall be subordinated to the Obligations pursuant to the Intercompany Note, (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;
(de) Indebtedness in respect of any bankers’ acceptanceacceptances, bank guarantees, letter letters of credit, warehouse receipt receipts or similar facilities instruments entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims); provided that any reimbursement obligations in respect thereof are reimbursed within thirty (30) days following the incurrence thereof;
(ef) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness or other obligations of the 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 11.1(e) 10.1(f), guarantee Indebtedness that such Restricted Subsidiary could not otherwise itself incur under this Section 11.110.1) 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 11.1(e10.1(f) 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 of any Permitted Additional Debt (or Indebtedness under clause clauses (ba), (c), (i), (k), (l) aboveor (q) of this Section 10.1 or other Junior Debt 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;
(fg) Guarantee Obligations (i) 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 11.5(b)(iv10.5(d), (viiig), (xvh), (xvii), (j), (q), (r), (s) and (xviit);
(h) (i) Indebtedness (including Indebtedness arising under Capital Capitalized Leases) incurred prior to or within 270 365 days of, or assumed in connection with, following the acquisition, construction, lease, repair, replacement, expansion or improvement of fixed assets (real or capital assets personal, and whether through the direct purchase of property or the Equity Interests of a Person owning such property) to finance the acquisition, construction, lease, repair, replacement replacement, expansion, or improvement of such fixed or capital assetsassets (for the avoidance of doubt, the purchase date for any asset shall be the later of the date of completion of installation and the beginning of the full productive use of such asset); (ii) Indebtedness arising under Capital Capitalized Leases, other than (A) Capital Capitalized Leases in effect on the Funding Closing Date and (B) Capital Capitalized 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 Covenants, as such covenants are 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)above; and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness; provided, that the aggregate principal amount of Indebtedness permitted by subclauses (i), (ii) and (iii) of this Section 10.1(h) shall not exceed at any time outstanding the greater of $20,000,000 and 3.5% of Consolidated Total Assets;
(hi) Indebtedness outstanding on the Funding Date listed date hereof and set forth on Schedule 11.1 10.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(ij) Indebtedness in respect of Hedge Agreements, subject to the limitations set forth in Section 10.10;
(k) Indebtedness of a Person the Borrower (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or Indebtedness attaching incurred to the assets of a Person thatRefinance such Indebtedness) (x) incurred in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 or (y) assumed in connection with any Permitted Acquisition or similar Investment permitted under Section 10.5 so long as, in either casethe case of Indebtedness assumed pursuant to clause (y) hereof, becomes a Restricted Subsidiary (such Indebtedness is not incurred in contemplation of such Permitted Acquisition 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 Funding Date as the result of a Permitted Acquisitionsimilar Investment; provided that:
that (A) immediately after giving Pro Forma Effect to such Permitted Acquisition or similar Investment and the incurrence or assumption of such Indebtedness, the Borrower shall be in compliance with the Financial Performance Covenants on a Pro Forma Basis and (B) (I) in the case of any such Indebtedness existed secured by a Lien that is junior to the Lien securing the Obligations, the Borrowing Base shall be adjusted to the extent required by Section 2.14(e), (II) in the case of any such Indebtedness that is Pari Debt, the Borrower shall make any mandatory prepayment required in connection therewith pursuant to Section 5.2(b)(iii) and (III) in the case of any such secured Indebtedness assumed pursuant to clause (y) hereof, the holders of such Indebtedness have no recourse to property other than the property so acquired and the property so acquired shall not constitute Borrowing Base Properties; provided, further that in the case of Indebtedness incurred or assumed pursuant to clauses (x) and (y) hereof or any applicable Permitted Refinancing Indebtedness, any such Indebtedness shall have a maturity date that is after the Latest Maturity Date at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(B) such Indebtedness is incurred or assumed and have a Weighted Average Life to Maturity not guaranteed in any respect by shorter than 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 longest remaining Weighted Average Life to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each Maturity of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10Facility; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the Secured Parties subject to intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent; provided, still further, that the requirements of this clause (CSection 10.1(k) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g10.1(h), 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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(iii) Pari Debt (including, for the avoidance of doubt, with respect to any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness); provided that any such Indebtedness incurred pursuant to this Section 10.1(l) (x) shall have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is secured and have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facility and (y) shall not include remedies or defaults which are based on the Borrowing Base and (ii) Permitted Refinancing Indebtedness with respect thereto;
(j) (im) Indebtedness incurred to finance a arising from Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent Intercompany Activities to the extent required under constituting an Investment permitted by Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.1010.5;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, createdirectly or indirectly, incurIncur, assume contingently or suffer otherwise, with respect to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Credit Documents, including pursuant to Sections 2.14 and 2.15, and (ii) any Credit Agreement Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(b) Indebtedness arising under the Senior Unsecured Notes Documents (including Guarantee Obligations thereunderany guarantees in respect thereof) in an aggregate principal amount not to exceed (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding), except as contemplated by the Senior Notes definition of “Permitted Refinancing Indebtedness”, $1,100,000,000 and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and (ii) any Permitted Refinancing Indebtedness issued or incurred Incurred to Refinance (in whole or in part) such Indebtedness; provided that, notwithstanding any other provision herein to the contrary, no Person other than a Credit Party shall at any time be an obligor in respect of any such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(di) Indebtedness constituting reimbursement obligations in respect of any bankers’ acceptance, bank guarantees, letter letters of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of workers compensation claims, or consistent with past practice, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims), 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;
(ed) subject to compliance with Section 11.5Except as otherwise limited by clauses (a), (b), (h) and (u), Guarantee Obligations incurred Incurred by (i) any Restricted Subsidiaries Subsidiary in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement (except that a Restricted Subsidiary that is not a Credit Party may not, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of any Restricted Subsidiaries Subsidiary that is permitted to be incurred Incurred under this Agreement; provided that (A) that, if the applicable Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligations, any 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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeObligations;
(fe) Guarantee Obligations (i) incurred Incurred in the ordinary course of business or consistent with past practice in respect of obligations of (or to) to suppliers, customers, franchisees, lessors, licensees or licensees, sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)distribution partners;
(f) (i) Indebtedness (including Financing Lease Obligations and other Indebtedness arising under Capital Leasesmortgage financings and purchase money Indebtedness (including any industrial revenue bond, industrial development bond or similar financings)) incurred within 270 days of, or assumed in connection with, the proceeds of which are used to finance the acquisition, development, construction, lease, repair, restoration, replacement, maintenance, upgrade, expansion or improvement of fixed or capital assets to finance or otherwise Incurred in respect of Capital Expenditures; provided that (A) such Indebtedness is Incurred concurrently with or within 270 days after the completion of the applicable acquisition, development, construction, lease, repair, replacement expansionrestoration, replacement, maintenance, upgrade, expansion or improvement or the making of such fixed or capital assets; (ii) Indebtedness arising under the applicable Capital Leases, other than (A) Capital Leases in effect on the Funding Date Expenditure and (B) such Indebtedness is not Incurred to acquire Capital Leases entered into Stock of any Person; provided, further, that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to subclause clause (i) above (provided thatwhen aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, in except as contemplated by the case definition of each “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $175,000,000 and (y) 25.0% of Consolidated EBITDA of the foregoing subclauses Borrower for the Test Period most recently ended on or prior to such date of Incurrence (imeasured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(g) 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 Covenants, as such covenants are 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 Incurred to Refinance any such Indebtedness;
(g) (i) Indebtedness constituting Financing Lease Obligations, other than Financing Lease Obligations in effect on the Closing Date (and set forth on Schedule 10.1) or Financing Lease Obligations entered into pursuant to Section 10.1(f); provided that, at the time of Incurrence thereof and after giving pro forma effect thereto and the use of the proceeds thereof, the aggregate principal amount of such Indebtedness then outstanding pursuant to clause (i) (when aggregated with the aggregate principal amount of Permitted Refinancing Indebtedness pursuant to clause (ii) in respect of such Indebtedness then outstanding) shall not, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, exceed an amount equal to (I) the greater of (x) $175,000,000 and (y) 25.0% of Consolidated EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date) minus (II) the aggregate amount of Indebtedness incurred pursuant to Section 10.1(f); and (ii) any Permitted Refinancing Indebtedness Incurred to Refinance such Indebtedness.
(h) Closing Date Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness in respect of Hedging Agreements Incurred in the ordinary course of business or consistent with past practice and, in each case, at the time entered into, not for speculative purposes;
(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 merger, consolidation or amalgamation 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 Funding Closing Date as the result of an Acquisition or Indebtedness of any Unrestricted Subsidiary that is redesignated as a Permitted AcquisitionRestricted Subsidiary; provided that:
(A) subject to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred and is continuing;
(B) as of the date that any such Person becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger, consolidation or amalgamation with such a Person or any of its Subsidiaries) or the date that any such assets are acquired by the Borrower or any Restricted Subsidiary and after giving pro forma effect thereto, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(j) does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(k)(i)(B)(I) and Section 10.1(s)(i) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(j) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $100,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date plus (II) subject to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of not greater than 6.85:1.00;
(C) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,;
(BD) such Indebtedness is not guaranteed in any respect by Holdings, 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),) except to the extent permitted under Section 10.5 or Section 10.6; and
(CE) (1x) the Capital Stock of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c) 9.11 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2y) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement (or alternative guarantee and delivers security arrangements in relation to the Obligations) and a counterpart signature page to the Intercompany Notes, in each case to the extent required under Section 9.10, 9.11 or 9.14(b), as applicable; provided that the requirements of this clause (E) shall not apply to any Indebtedness of the type that could have been Incurred under Section 10.1(f) or Section 10.1(g);
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in whole or in part) such Indebtedness;
(i) Indebtedness of the Borrower or any Restricted Subsidiary Incurred to finance an Acquisition; provided that,
(A) subject to Section 1.11, before and after giving pro forma effect thereto, no Event of Default under Section 11.1 or 11.5 has occurred and is continuing;
(B) as of the date of such Incurrence and after giving pro forma effect thereto, and the use of the proceeds thereof, the aggregate principal amount of Indebtedness then outstanding pursuant to this Section 10.1(k), does not exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the sum of (I) when aggregated with the aggregate principal amount of (1) Indebtedness Incurred pursuant to, and then outstanding under, Section 10.1(j)(i)(B)(I) and Section 10.1(s)(i) and (2) Permitted Refinancing Indebtedness Incurred pursuant to clause (ii) of this Section 10.1(k) to Refinance Indebtedness Incurred pursuant to, and then outstanding in reliance on, this clause (I), the greater of (x) $100,000,000 and (y) 15.0% of Consolidated EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of determination (measured as of such date) based upon the Section 9.1 Financials most recently delivered on or prior to such date plus (II) subject to Section 1.11, an aggregate amount such that, after giving pro forma effect to the Incurrence of any such Indebtedness, to such Acquisition, Investment, any Specified Transaction or Specified Restructuring to be consummated in connection therewith, the Borrower and the Restricted Subsidiaries shall be in compliance on a pro forma basis with a Consolidated Total Debt to Consolidated EBITDA Ratio, as such ratio is calculated as of the last day of the Test Period most recently ended on or prior to the date of such Incurrence, as if such Incurrence, Acquisition, Investment, Specified Transaction and Specified Restructuring had occurred on the first day of such Test Period of not greater than 6.85:1.00;
(C) the terms of such Indebtedness do not provide for any scheduled repayment (including at maturity), mandatory repayment, redemption, repurchase, defeasance, acquisition, similar payment or sinking fund obligation prior to the Latest Maturity Date, other than customary prepayments, repurchases, redemptions, defeasances or similar payments of, or offers to prepay, redeem, repurchase, defease, acquire or similarly pay upon, a change of control, asset sale event or casualty, eminent domain or condemnation event or on account of the accumulation of excess cash flow and customary acceleration rights upon an event of default;
(D) if such Indebtedness is Incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor, such Indebtedness shall not be guaranteed in any respect by Holdings, the Borrower or any other Subsidiary Guarantor except to the extent permitted under Section 10.5;
(E) (x) the Capital Stock of any Person acquired in such Acquisitions or Investments permitted under Section 10.5 (the “acquired Person”) is pledged to the Collateral Agent to the extent required under Section 9.11 and (y) such acquired Person executes a supplement to each of the Guarantee, the Security DocumentsAgreement and the Pledge Agreement and a counterpart signature page to the Intercompany Note (or alternative guarantee and security arrangements in relation to the Obligations), in each case, to the extent required under Section 10.109.10, 9.11 or 9.14(b), as applicable;
(BF) after giving effect the terms of such Indebtedness shall be consistent with the requirements set forth in clause (b) and, if applicable, clause (f) of the definition of “Permitted Additional Debt”; provided that a certificate of an Authorized Officer of the Borrower delivered to the incurrence Administrative Agent at least five Business Days prior to the Incurrence of any such Indebtedness, to such acquisition and to any related pro forma adjustment, the Borrower shall be in compliance on together with a pro forma basis with the Financial Performance Covenants, as such covenant are recomputed as at the last day reasonably detailed description of the most recently ended Test Period as if such incurrence material terms and acquisition had occurred on the first day of such Test Period;
(C) the maturity conditions of such Indebtedness is not earlier thanor drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and no mandatory repayment or redemption conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative Agent notifies the Borrower within such five Business Day period that it disagrees with such determination (other than customary change including a reasonable description of control or asset sale offers or the basis upon any event of default) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrencewhich it disagrees); and
(DG) at the time any such Indebtedness is Incurred and after giving pro forma effect to such Incurrence and any other transactions being consummated in connection therewith and the use of the proceeds thereof,, the aggregate principal amount of all Indebtedness Incurred by Non- Credit Parties pursuant to, and then outstanding under, this Section 10.1(k), when aggregated with the aggregate principal amount of (1) all other Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to Section 10.1(s) and (2) all Permitted Refinancing Indebtedness Incurred by Non-Credit Parties and then outstanding pursuant to clause (ii) of this Section 10.1(k), shall not guaranteed exceed, except as contemplated by the definition of “Permitted Refinancing Indebtedness”, the greater of (x) $175,000,000 and (y) 25.0% of Consolidated EBITDA of the Borrower for the Test Period most recently ended on or prior to such date of Incurrence (measured as of the date such Indebtedness is Incurred based upon the Section 9.1 Financials most recently delivered on or prior to such date);
(ii) any Permitted Refinancing Indebtedness Incurred to Refinance (in any whole or in part) such Indebtedness;
(i) unsecured Indebtedness in respect by of obligations of the Borrower or any Restricted Subsidiary Guarantor except to pay the extent permitted under Section 11.5;deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are Incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money and (ii) unsecured Indebtedness in respect of intercompany obligations of 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 borr
Appears in 1 contract
Sources: Credit Agreement (MultiPlan Corp)
Limitation on Indebtedness. (A) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect the Borrower that is advanced by any Restricted Subsidiary of the Senior Notes Borrower and (ii) subject to compliance with Section 10.5, any fees, underwriting discounts, premiums and Restricted Subsidiary that is advanced by the Borrower or any other costs and expenses incurred in connection with Restricted Subsidiary of the foregoing and Borrower; provided that all such Indebtedness of any Permitted Refinancing Indebtedness issued or incurred Credit Party owed to Refinance such Indebtednessany Person that is not a Credit Party shall be subordinated to the Obligations on customary terms;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) except as provided in clauses (j) and (k) below but subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) by a Restricted Foreign Subsidiary or another Restricted Subsidiary that is not a Guarantor of any Indebtedness of the Borrower and (b) in respect of the Permitted Subordinated Debt and Permitted Additional Subordinated Notes and Permitted Senior Notes, unless such Guarantee is made by a Guarantor and is unsecured and, if the Indebtedness being guaranteed under this Section 11.1(e) such Guarantee is of Permitted Subordinated Debt or Permitted Additional Subordinated Debt, is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Guarantee of same extent as 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 of any applicable Permitted Subordinated Debt or Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted unless such Restricted Subsidiary shall have also provided a guarantee of Subordinated Notes, as the Obligations substantially on the terms set forth in the Guaranteecase may be;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.11, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks (provided that Section 5.2 shall be complied with in respect of such Permitted Sale Leaseback) and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof 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)) above, provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 this clause (iii) shall not exceed $25,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereof and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any in respect of Hedge Agreements;
(i) Indebtedness in respect of Permitted Refinancing Indebtedness issued or incurred to Refinance such IndebtednessSubordinated Debt;
(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 Funding Closing Date as the result of a Permitted Acquisition; , provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Sources: Credit Agreement (Accellent Corp.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Subordinated Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing Senior Convertible Notes outstanding as of the Closing Date and any Permitted Refinancing Indebtedness issued accrued but unpaid interest thereon arising prior to or incurred to Refinance such Indebtednessduring the Chapter 11 Cases;
(c) Intercompany loans and advances made by the Borrower Indebtedness of any Credit Party owing to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesother Credit Party;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business or consistent with past practice or industry practice (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries any Credit Party in respect of Indebtedness of the Borrower or any 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e10.1(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 (in the reasonable determination of the Administrative Agent) as those contained in the subordination of such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeIndebtedness;
(f) Guarantee Obligations (i) 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 11.5(b)(ivSection 10.5(c), (viiil), (xv), (xvi) and (xviim);
(ig) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 as set forth on a pro forma basis after giving effect to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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 IndebtednessSchedule 10.1;
(h) Indebtedness outstanding on the Funding Date date hereof listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness10.1;
(i) Indebtedness in respect of a Person or Indebtedness attaching performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees and similar obligations (including such obligations in respect of letters of credit and bank guarantees related thereto and such obligations incurred to the assets of a Person thatsecure health, 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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired andsafety and environmental obligations), in each case, was not created in anticipation thereof,
(B) such Indebtedness is not guaranteed connection with money borrowed and provided in any respect by the Borrower ordinary course of business or any Restricted Subsidiary (other than any such Person that so becomes a Restricted Subsidiary or is the survivor of a merger consistent with such Person or any of its Subsidiaries),
(C) (1) the Stock of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtednesspast practice;
(j) Cash Management Obligations, Cash Management Services and other Indebtedness in respect of netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar arrangements in each case incurred in the ordinary course of business;
(k) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Credit Party to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services;
(l) Indebtedness arising from agreements of the Borrower or any Credit Party providing for indemnification, adjustment of purchase price or similar obligations (including earn-outs), in each case entered into in connection with Investments and the Disposition of any business, assets or Stock permitted hereunder;
(m) Indebtedness of any Credit Party consisting of (i) Indebtedness incurred obligations to finance a Permitted Acquisition; provided that:
pay insurance premiums or (Aii) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any obligations contained in firm transportation or supply agreements or other Security Documentstake or pay contracts, in each casecase arising in the ordinary course of business;
(n) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent required under Section 10.10such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) and the Subsidiaries incurred in the ordinary course of business;
(Bo) after giving effect to the incurrence Indebtedness associated with self-insurance obligations or bid, plugging and abandonment, appeal, reimbursement, performance, surety and similar bonds, letters of any such Indebtedness, to such acquisition credit and to any related pro forma adjustment, the Borrower shall be completion guarantees required by Requirements of Law or by Governmental Authorities in compliance on a pro forma basis connection with the Financial Performance Covenantsoperation of Oil and Gas Properties, as such covenant are recomputed as at Carbon Dioxide Interests or other material properties in the last day ordinary course of business or obligations and worker’s compensation claims in the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day ordinary course of such Test Periodbusiness;
(Cp) all premiums (if any), interest (including post-petition interest), fees, expenses, charges, and additional or contingent interest on obligations described in clauses (a) through (o) above and (q) through (s) below;
(q) Indebtedness arising as a result of the Genesis Pipeline Dropdown Transactions outstanding as of the Closing Date and any accrued but unpaid interest thereon during the Chapter 11 Cases;
(r) Indebtedness in respect of the Second Lien Notes outstanding as of the Closing Date and any accrued but unpaid interest thereon during the Chapter 11 Cases;
(s) the maturity of such Indebtedness is not earlier than, “Obligations” under and no mandatory repayment or redemption (other than customary change of control or asset sale offers or upon as defined in the Pre-Petition Credit Agreement and any event of default) is required prior to, 91 days after accrued but unpaid interest thereon during the Maturity Date (determined at the time of issuance or incurrence)Chapter 11 Cases; and
(Dt) other Indebtedness (except for borrowed money) so long as the aggregate principal amount of all such Indebtedness is described in this Section 10.1(t) does not guaranteed in exceed $2,500,000 at any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;time outstanding.
Appears in 1 contract
Sources: Senior Secured Super Priority Debtor in Possession Credit Agreement (Denbury Resources Inc)
Limitation on Indebtedness. (A) The Borrower Credit Parties will not, and will not permit any of the their respective Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) subject to compliance with Section 10.5(d) and/or (g), any Restricted Subsidiary to the Borrower or its any Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ acceptancebanker’s acceptances, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) except as provided in clauses (i) and (j) below, subject to compliance with Section 11.510.5(g), Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(e) is subordinated to the Obligations, such Guarantee Obligations there shall be subordinated to the no 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 that is not a Subsidiary Guarantor of any Permitted Additional Debt (or Indebtedness under clause (b) 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 GuaranteeBorrower;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofof (A) the acquisition (by purchase, lease or assumed in connection withotherwise), the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets (including Real Estate), and (B) any ECA Financings incurred prior to finance the acquisitionSpecified Schedule Date, construction, lease, repair, replacement expansion, or improvement of such fixed or capital assets; (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Specified Schedule 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), ) above; provided that the Borrower aggregate amount of Indebtedness incurred pursuant to this subclause (iii) shall be in compliance on a pro forma basis after giving effect to not exceed $50,000,000 at any time outstanding;
(g) (i) the incurrence of such Indebtedness with Prepetition Secured Debt; (ii) the Financial Performance Covenants, as such covenants are 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)Prepetition Senior Notes; and (iii) any Permitted Refinancing other Indebtedness issued or incurred to Refinance any such Indebtednessoutstanding on the Specified Schedule Date and listed on Schedule 10.1 hereto;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect of Hedge Agreements;
(i) Indebtedness of a Person any Designated Target Subsidiary or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary (or is a any Restricted Subsidiary that survives is not a merger with such Person or any of its Subsidiaries) or Indebtedness attaching Guarantor to the assets that are acquired by the Borrower or any Restricted Subsidiary, in each case after Subsidiary of the Funding Date as Borrower to the result of extent such Indebtedness is incurred to facilitate the Designated Target Transaction or a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became , to make an Investment in a Restricted Designated Target Subsidiary or at the time such assets were acquired andan Acquired Person or its Subsidiaries as an Investment permitted by Section 10.5, in each case, was not created in anticipation thereof,subject to compliance with Section 10.5;
(Bj) Indebtedness to finance Permitted Acquisitions (other than the Designated Target Transaction) incurred by any Person acquired or formed for the purpose of acquiring such assets as a result of such Permitted Acquisition (each, an “Acquired Person” and such Indebtedness, “Permitted Acquisition Debt”), on or prior to the consummation of such Permitted Acquisition; provided that (a) such Indebtedness is not incurred or guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than the Acquired Persons and their Subsidiaries) and otherwise has no recourse against the Borrower or any Restricted subsidiary (other than the Acquired Persons and their Subsidiaries) or any of their assets and (b) at the time incurred, the aggregate amount of such Indebtedness incurred pursuant to this clause (j) with respect to an Acquired Person shall not exceed a Loan to Value Ratio of 40%; provided, however, that, upon consummation of the Designated Target Transaction, neither the Credit Parties nor any Restricted Subsidiaries shall be permitted to incur any Indebtedness under this Section 10.1(j);
(k) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, customs 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, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(l) Indebtedness incurred in connection with any Permitted Sale Leaseback (provided that so becomes a Restricted Subsidiary the Net Cash Proceeds thereof are promptly applied to the extent required by Section 5.2);
(m) Indebtedness (i) constituting indemnification obligations or is obligations in respect of purchase price or other similar adjustments (including deferred payments or similar obligations) incurred in the survivor Designated Target Transaction and (ii) consisting of a merger with such Person obligations under deferred compensation or other similar arrangements incurred in Designated Target Transaction;
(n) [reserved];
(o) [reserved];
(p) Indebtedness of the Borrower or any of its Subsidiaries),Subsidiaries which may be deemed to exist in connection with agreements providing for indemnification and similar obligations in connection with acquisitions or sales of assets and/or businesses effected in accordance with the requirements of this Agreement;
(Cq) Indebtedness of the Borrower or any Subsidiary Guarantor not otherwise permitted hereunder in an aggregate principal amount which, when aggregated with the principal amount or liquidation preference of all other Indebtedness then outstanding and incurred pursuant to this clause (1p), does not exceed $50,000,000 at any one time outstanding;
(r) Guarantee Obligations (i) of the Stock Borrower in favor of its Subsidiaries to permit foreign currency transactions or fund transfers in an aggregate amount not to exceed $2,000,000 at any time outstanding, (ii) of the Borrower or any of its Subsidiaries as a guarantor of the lessee under any lease pursuant to which the Borrower or any of its Subsidiaries is the lessee, other than any capital lease pursuant to which a Subsidiary that is not a Subsidiary Guarantor is the lessee, so long as such Person lease is pledged otherwise permitted hereunder, (iii) of the Borrower or any of its Subsidiaries as a guarantor of any Capitalized Lease Obligation to which a Joint Venture is a party or any contract entered into by such Joint Venture in the ordinary course of business in an aggregate amount not to exceed $2,000,000 at any time outstanding; provided that the maximum liability of the Borrower or any of its Subsidiaries in respect of any obligations as described in this clause (iii) is permitted as an Investment pursuant to the Administrative Agent requirements of Section 10.5, and (iv) of the Borrower or any of its Subsidiaries which may be deemed to exist pursuant to the acquisition agreements entered into in connection with any Investment permitted pursuant to Section 10.5 (including any obligation to pay the purchase price therefor and any indemnification, purchase price adjustment and similar obligations to the extent required under Section 10.10(cotherwise permitted hereunder);
(s) and (2) such Person executes a supplement to each obligations of the GuaranteeBorrower or any Subsidiary consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in the Security Agreement and the Pledge Agreementordinary course of business, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such constituting Indebtedness;
(jt) [reserved];
(iu) Indebtedness incurred to finance a Permitted Acquisition; provided that:of Subsidiaries that are not Subsidiary Guarantors for working capital purposes, so long as the Indebtedness under this clause (t) does not exceed $10,000,000 in the aggregate at any time outstanding;
(Av) [reserved];
(1w) letters of credit and bank guarantees so long as the Stock aggregate U.S. Dollar equivalent of the Person acquired is pledged to the Administrative Agent to the extent required all such letters of credit and bank guarantees does not exceed $25,000,000 at any time;
(x) Permitted Refinancing Indebtedness in respect of any Indebtedness permitted under Section 10.10(cclauses (f), (g)(iii), (l), (t) and (2v) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under this Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence10.1(A); and
(Dy) such Indebtedness is all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (w) above.
(B) The Borrower will not guaranteed in issue any respect by the Borrower preferred stock or any Subsidiary Guarantor except to the extent permitted under Section 11.5;other preferred equity interests.
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Credit Agreement (Intelsat S.A.)
Limitation on Indebtedness. The Borrower Parent will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist (collectively, “incur” and collectively, an “incurrence”) any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Credit DocumentsDocuments or any Credit Agreement Refinancing Indebtedness (including pursuant to any Refinancing Amendment) and (ii) Indebtedness arising under the Revolving Loan Credit Agreement in a principal amount not exceeding at any one time outstanding the greater of (x) $1,300,000,000 and (y) the Borrowing Base;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect the Parent or any Credit Party owing to the Parent or any Restricted Subsidiary of the Senior Notes Parent, provided that such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations on such terms that are set forth in Exhibit P, (ii) any feesRestricted Subsidiary who is not a Credit Party owing to any other Restricted Subsidiary who is not a Credit Party and (iii) subject to compliance with Section 10.05, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred Restricted Subsidiary who is not a Credit Party owing to Refinance such Indebtednessany Credit Party;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course Ordinary Course of business Business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ed) subject to compliance with Section 11.510.05 at the time of incurrence, Guarantee Obligations incurred by (i) Restricted Subsidiaries of the Parent in respect of Indebtedness of the Borrower Parent 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower Parent in respect of Indebtedness of the Restricted Subsidiaries of the Parent that is permitted to be incurred under this Agreement; , provided that that, except as provided in clauses (Aj) if the Indebtedness being guaranteed under this Section 11.1(eand (k) is subordinated to the Obligationsbelow, such Guarantee Obligations there shall be subordinated to the no Guarantee (x) by a Restricted Subsidiary that is not a Guarantor of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination any Indebtedness of such Indebtedness any Credit Party and (By) no guarantee by any Restricted Subsidiary in respect of any Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted Debt, unless such Restricted Subsidiary shall have also provided Guarantee is made by a guarantee of the Obligations substantially on the terms set forth Guarantor and, in the Guaranteecase of Permitted Additional Debt that is subordinated, is subordinated;
(fe) Guarantee Obligations (i) incurred in the ordinary course Ordinary Course of business Business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)Section 10.05;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; , (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding date hereofClosing 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)) above, provided, that the Borrower aggregate amount of Indebtedness incurred pursuant to this subclause (iii) shall be in compliance not exceed an amount at any time outstanding, equal to the greater of (x) $50,000,000 and (y) 1.5% of Consolidated Total Assets on a pro forma basis after giving effect to the date of the incurrence of such Indebtedness, and (iv) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness with the Financial Performance Covenantsspecified in subclause (i), as such covenants are 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 (ii) or (iii) above, provided that, except to the extent otherwise expressly permitted hereunder, the principal amount thereof (including pursuant to clause (iii)) does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the date hereofClosing Date (i) listed on Schedule 10.01(g) and any Permitted Refinancing modification, replacement, refinancing, refunding, renewal or extension thereof, provided that, except to the extent otherwise expressly permitted hereunder, (x) the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (y) the direct and contingent obligors with respect to such Indebtedness issued are not changed and (ii) owing by the Parent to any Restricted Subsidiary of the Parent or incurred by any Restricted Subsidiary of the Parent to Refinance the Parent or any such Indebtednessother Restricted Subsidiary of the Parent;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect of Hedge Agreements;
(i) [Reserved]
(i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary Credit Party (or is a Restricted Subsidiary Credit Party that survives a merger with such Person or any of its SubsidiariesPerson) or Indebtedness attaching to the assets that are acquired by the Borrower Parent or any Restricted SubsidiaryCredit Party, in each case after the Funding Closing Date as the result of a Permitted Acquisition; provided that:
, provided, that (Aw) such Indebtedness existed at the time such Person became a Restricted Subsidiary Credit Party or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (Bx) such Indebtedness is not guaranteed in any respect by the Borrower Parent or any Restricted Subsidiary Credit Party (other than by any such Person that so becomes a Restricted Subsidiary Credit Party or is the survivor of a merger with such Person or and any of its Subsidiaries),
) and (C) (1y)(A) the Stock Equity Interests of such Person is pledged to the Administrative Agent Collateral Trustee to the extent required under Section 10.10(c) 9.13 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2B) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement to the extent required under Sections 9.12 or 9.13, as applicable, provided that the requirements of this subclause (y) shall not apply to (I) an aggregate amount at any time outstanding of up to the greater of (A) $150,000,000 or (B) 4.25% of Consolidated Total Assets at the time of the incurrence of such Indebtedness (less all Indebtedness as to which the proviso to clause (k)(i)(y) below then applies, or that constitutes a modification, replacement, refinancing, refunding, renewal or extension pursuant to subclause (ii) below or subclause (k)(ii), as applicable) and delivers (II) any Indebtedness of the type that could have been incurred under Section 10.01(f), and (ii) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise expressly permitted hereunder, (X) the principal amount of any such Indebtedness does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus other Security Documentsreasonable amounts paid and fees and expenses incurred in connection with such modification, in each casereplacement, refinancing, refunding, renewal or extension plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (Y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(i) Permitted Additional Debt of the Parent or any Restricted Subsidiary of the Parent, including Permitted Additional Debt incurred to finance a Permitted Acquisition, provided that (x) if such Indebtedness is incurred by a Restricted Subsidiary that is not a Credit Party, such Indebtedness is not guaranteed by a Credit Party except as permitted by Section 10.05(g) and (y) if such Indebtedness is incurred to finance a Permitted Acquisition, (A) the Parent or another Credit Party pledges the Equity Interests of such acquired Person to the Collateral Trustee to the extent required under Section 10.109.13 and (B) such acquired Person executes a supplement to the Guarantee and the Security Agreement (or alternative guarantee and security arrangements in relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 9.12 or 9.13, as applicable; provided that the requirements of this subclause (y) shall not apply to an aggregate amount at any time outstanding of up to the greater of (A) $150,000,000 or (B) 4.25% of Consolidated Total Assets at the time of the incurrence of such Indebtedness (less all Indebtedness as to which the proviso to clause (j)(i)(y) above then applies, or that constitutes a modification, replacement, refinancing, refunding, renewal or extension pursuant to subclause (ii) below or subclause (j)(ii), as applicable), and (ii) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise expressly permitted hereunder, (x) the principal amount of any such Indebtedness does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(Bl) after giving effect 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, including those incurred to secure health, safety and environmental obligations in the incurrence Ordinary Course 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 Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test PeriodBusiness;
(Ci) Indebtedness incurred in connection with any Permitted Sale Leaseback (provided that the Net Cash Proceeds thereof are promptly applied to the prepayment of the Term Loans to the extent required by Section 5.02) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise permitted hereunder, (x) the maturity principal amount of any such Indebtedness is not earlier thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and no mandatory repayment (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(n) (i) additional Indebtedness and (ii) any refinancing, refunding, renewal or redemption extension of any Indebtedness specified in subclause (other than customary change i) above; provided that the aggregate amount of control or asset sale offers or upon Indebtedness incurred and remaining outstanding pursuant to this clause (n) shall not at any event time exceed an amount equal to the greater of default(x) is required prior to$150,000,000 and (y) 4.25% of Consolidated Total Assets on the date of the incurrence of such Indebtedness;
(o) Indebtedness incurred by Restricted Subsidiaries that are Foreign Subsidiaries; provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (o) shall not at any time exceed, 91 days after an amount, in the Maturity Date aggregate, at any time outstanding, equal to the greater of (determined x) $125,000,000 and (y) 3.5% of Consolidated Total Assets at the time of issuance or incurrence); andthe incurrence of such Indebtedness;
(Dp) Indebtedness incurred by Restricted Subsidiaries that are not Credit Parties so long as (x) the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (p) shall not at any time exceed, an amount, in the aggregate, at any time outstanding, equal to the greater of (x) $125,000,000 and (y) 3.5% of Consolidated Total Assets at the time of the incurrence of such Indebtedness and (y) such Indebtedness matures no earlier than 91 days subsequent to the maturity of the initial Term Loans;
(q) Indebtedness in respect of overdraft facilities, employee credit card programs and other cash management arrangements in the Ordinary Course of Business and, with regard to Restricted Subsidiaries that are not Credit Parties, Indebtedness in respect of cash pooling arrangements in the Ordinary Course of Business;
(r) unsecured Indebtedness in respect of obligations of the Parent or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services, provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligation) in the Ordinary Course of Business and not in connection with the borrowing of money or Hedge Agreements;
(s) Indebtedness arising from agreements of the Parent or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case entered into in connection with Permitted Acquisitions, other Investments and the disposition of any business, assets, or Equity Interests permitted hereunder, other than Guarantee Obligations incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing such acquisition, provided that (i) such Indebtedness is not guaranteed reflected on the balance sheet of the Parent or any Restricted Subsidiary (contingent obligations referred to in a footnote to financial 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 respect subsequent changes in value), actually received by the Borrower Parent and the Restricted Subsidiaries in connection with such disposition;
(t) Indebtedness of the Parent or any Restricted Subsidiary consisting of (i) obligations to pay insurance premiums or (ii) take or pay obligations contained in supply agreements, in each case arising in the Ordinary Course of Business and not in connection with the borrowing of money or Hedge Agreements;
(u) Indebtedness representing deferred compensation, severance and health and welfare retirement benefits to current and former employees of the Parent (or any direct or indirect parent thereof) and the Restricted Subsidiaries incurred in the Ordinary Course of Business;
(v) unsecured, Subordinated Indebtedness consisting of promissory notes issued by the Parent or any Guarantor except to current or former officers, managers, consultants, directors and employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the extent purchase or redemption of Equity Interests of the Parent (or any direct or indirect parent thereof) permitted by Section 10.06;
(w) Indebtedness consisting of obligations of the Parent or the Restricted Subsidiaries under Section 11.5deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder;
(x) cash management obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts;
(y) Indebtedness arising from advance payments received in the Ordinary Course of Business from customers for goods and services purchased or rented in the Ordinary Course of Business and not for borrowed money;
(z) Indebtedness of any Receivables Entity in respect of any Qualified Receivables Tran
Appears in 1 contract
Sources: Refinancing Amendment and Incremental Joinder Agreement (MRC Global Inc.)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the followingforegoing, the limitations set forth in the immediately preceding paragraph shall not apply to any of the following items:
(a) Indebtedness arising under the Credit DocumentsDocuments (including the 2016 Incremental Term Loans, the New Revolving Credit Commitments pursuant to the 2016 Incremental Amendment, the 2018 Incremental Term Loans, the 2019 Incremental Term Loans, the New Revolving Credit Commitments pursuant to the Seventh Amendment, the Eighth Amendment, the Ninth Amendment, the Eleventh Amendment and the Twelfth Amendment and any other Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(b) subject to compliance with Section 10.5, Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior Notes and any fees, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued Borrower or incurred to Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and 196 AMERICAS 122173769123894352 the Intercompany Subordinated Note 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (including in respect of construction and restoration activities and 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 claimsclaims and similar obligations);
(ed) subject to compliance with Section 11.510.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or any other Restricted Subsidiaries Subsidiary 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(e10.1(d) 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 Indebtedness, and (B) no guarantee the aggregate principal amount of Guarantee Obligations incurred by any Restricted Subsidiaries that are not Subsidiary of any Permitted Additional Debt (or Indebtedness Guarantors under this clause (bd), when combined with the total amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Sections 10.1(k) aboveand 10.1(ii) (but without duplication of such amounts), shall be permitted unless such Restricted Subsidiary shall have also provided not exceed the greater of (x) $300,000,000 and (y) 17.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a guarantee Pro Forma Basis) at the time of the Obligations substantially on the terms set forth incurrence or issuance, in the Guaranteeeach case at any time outstanding;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business (including in respect of construction or restoration activities) in respect of obligations of (or to) suppliers, customers, franchisees, lessorslessors and licensees, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(ivSection 10.5 (other than Investments permitted by Section 10.5(l) by reference to Section 10.1 and Section 10.5(q), ); provided that this clause (viii), (xv), (xviii) shall not be construed to limit the requirements of Section 10.1(b) and (xvii);
(id) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 contemplated by the Borrower or any Restricted Subsidiary, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test PeriodPlan;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;
Appears in 1 contract
Sources: Credit Agreement (Vistra Corp.)
Limitation on Indebtedness. (A) The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower, (ii) any Restricted Subsidiary Guarantor to the Borrower or its any Restricted Subsidiaries so long as such Indebtedness Subsidiary of the Borrower, (iii) any Restricted Subsidiary of the Borrower which is evidenced by an intercompany note not a Subsidiary Guarantor to any other Restricted Subsidiary of the Borrower which is not a Subsidiary Guarantor and (iv) subject to subordination terms acceptable compliance with the requirements of Section 10.5, the Borrower or any Subsidiary Guarantor to any Restricted Subsidiary of the Borrower which is not a Subsidiary Guarantor; provided, that, any Indebtedness of the Borrower or any Subsidiary Guarantor to any Restricted Subsidiary which is not a Subsidiary Guarantor shall be subordinated in right of payment to the Administrative Agent, to the extent permitted by Requirements Obligations following an Event of Law and not giving rise to material adverse tax consequencesDefault;
(dc) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries which are not Subsidiary Guarantors in respect of Indebtedness of the 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 notAgreement, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower or Subsidiary Guarantors in respect of Indebtedness of the Borrower or Restricted Subsidiaries that are Subsidiary Guarantors that is permitted to be incurred under this Agreement (including where the Parent is the co-issuer of such Indebtedness, a guarantee of the obligations of Parent thereunder) and (iii) subject to compliance with the requirements of Section 10.5, the Borrower or Subsidiary Guarantors in respect of Indebtedness of Restricted Subsidiaries that are not Subsidiary Guarantors that is permitted to be incurred under this Agreement; , provided that there shall be no Guarantee (Aa) if by a Restricted Foreign Subsidiary of any Indebtedness of the Borrower or a Subsidiary Guarantor and (b) in respect of Indebtedness being guaranteed under this Section 11.1(e) that is subordinated to the Obligations, unless such Guarantee Obligations shall be is made by a Guarantor and such Guarantee is unsecured and subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders same extent as those contained in the subordination of such Indebtedness and (B) no guarantee by any Restricted Subsidiary of any Permitted Additional Debt (or Indebtedness under clause (b) 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 Guaranteeso Guaranteed;
(fe) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)in an aggregate amount not to exceed $2,000,000 at any time outstanding;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) (A) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures and (iiB) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Date date hereof and (B) Capital Leases entered into pursuant to subclause (iii) above (below, provided that, in that the case aggregate amount of each of the foregoing subclauses Indebtedness incurred pursuant to this subclause (i) and (when aggregated with the amount of refinancing Indebtedness in respect thereof outstanding pursuant to subclause (iii) below) shall not exceed $75,000,000 at any time outstanding, (ii), the Borrower shall be ) Indebtedness arising under Capital Leases entered into in compliance on a pro forma basis after giving effect to the incurrence of such Indebtedness connection with the Financial Performance Covenants, as such covenants are 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); Permitted Sale Leasebacks and (iii) any Permitted Refinancing refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i) or incurred (ii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the Amendment Effective Date (other than the Subordinated Notes) and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on in respect of Hedge Agreements entered into in the Funding Date listed on Schedule 11.1 ordinary course of business (and not for speculative purposes) in order to protect the Borrower or any of the Restricted Subsidiaries against fluctuations in interest rates, currency exchange rates or commodity prices;
(i) Indebtedness in respect of the Subordinated Notes and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect thereof;
(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 Funding Amendment Effective Date as the result of a Permitted Acquisition; an Investment permitted by Section 10.5, provided that:
that (Ax) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
thereof and (By) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary (other than any such Person person that so becomes a Restricted Subsidiary Subsidiary) and (ii) any refinancing, refunding, renewal or is the survivor extension of a merger with such Person or any of its Subsidiaries),
Indebtedness specified in subclause (Ci) (1) the Stock of such Person is pledged to the Administrative Agent above, provided that except to the extent required under Section 10.10(cotherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (2y) the direct and contingent obligors with respect to such Person executes a supplement Indebtednesses are not changed in respect thereof in an aggregate principal amount outstanding pursuant to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case this clause (j) not to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with exceed $20,000,000 at any time;
(k) (i) the Secured Parties subject to intercreditor arrangements Notes, (ii) the Initial PIK Convertible Notes, (iii) Permitted Additional PIK Convertible Notes, (iv) Permitted Additional Indebtedness and (v) Permitted Refinancing Indebtedness in form and substance reasonably satisfactory to the Administrative Agent; provided, further, that the requirements respect of Indebtedness set forth in subclauses (i) through (iv) of this clause (Ck);
(l) Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed $75,000,000 (which amount shall include the aggregate outstanding amount at any time of any Indebtedness of Restricted Foreign Subsidiaries existing at the Amendment Effective Date);
(m) additional Indebtedness, provided that the aggregate amount of Indebtedness outstanding at any time pursuant to this clause (m) shall not apply to any Indebtedness of the type that could have been incurred under Section 11.1(g), exceed $100,000,000; and
(Di) after giving effect additional Indebtedness; provided that (v) the aggregate principal amount of all such additional Indebtedness issued or incurred pursuant to this clause (n)(i) shall not exceed the Maximum Incremental Facilities Amount, (w) the terms of such additional Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligation prior to the assumption Maturity Date in excess of any 1% per annum (other than customary offers to purchase or prepayment requirements upon a change of control, from excess cash flow or asset sale or event of loss and customary acceleration rights after an event of default), (x) such additional Indebtedness is either unsecured or secured by a Lien ranking junior to the Lien on the ABL Priority Collateral securing the Obligations, (y) no Subsidiary of the Borrower other than a Subsidiary Guarantor is a guarantor or obligor with respect to such Indebtedness, to such acquisition and to any related pro forma adjustment(z) if secured, the Borrower shall be in compliance on a pro forma basis with the Financial Performance Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day holders of such Test Period;
additional Indebtedness (or a trustee or agent authorized to act on behalf of such holders) shall have executed a supplement to the Intercreditor Agreement agreeing to be bound thereby and (ii) any Permitted Refinancing Indebtedness in respect of additional Indebtedness incurred pursuant to Refinance such Indebtedness;the foregoing clause (n)(i).
(jB) (i) Neither Parent nor Holdings will create, incur, assume or suffer to exist any Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) except (1) with respect to Parent, Qualified PIK Securities and Indebtedness representing deferred compensation to directors and employees of Parent, Holdings, the Stock Borrower or any of the Person acquired is pledged to Restricted Subsidiaries incurred in the Administrative Agent to ordinary course of business or in connection with the extent required under Section 10.10(c) Transactions and (2) such Person executes a supplement to each guarantee obligations of Indebtedness permitted by clauses (a), (k) and (n) of Section 10.1(A), the Subordinated Notes and any Permitted Refinancing Indebtedness of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test Period;Subordinated Notes.
(C) None of Parent, Holdings or the maturity of such Indebtedness is not earlier Borrower will, nor will they permit any Subsidiary to, issue any preferred stock or other preferred equity interests, other than, and no mandatory repayment or redemption (other than customary change in the case of control or asset sale offers or upon any event of default) is required prior toParent, 91 days after the Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;Qualified PIK Securities.
Appears in 1 contract
Sources: Credit Agreement (Sealy Corp)
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than Indebtedness. Notwithstanding the foregoing, the limitations set forth in the immediately preceding sentence shall not apply to any of the following:
(a) Indebtedness arising under the Credit DocumentsDocuments (including any Indebtedness incurred as permitted by Sections 2.14, 2.15 and 13.1);
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of under the Senior Notes ABL Credit Documents 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 thereof, in an aggregate principal amount not to Refinance exceed the sum of (i) $300,000,000 plus (ii) the principal amount of “Incremental Facilities” (as defined in the ABL Credit Agreement) measured at the time of incurrence pursuant to the ABL Credit Agreement as in effect on the Closing Date plus (iii) solely in the case of any such Refinancing Indebtedness, the Refinancing Increased Amount with respect thereto;
(c) Intercompany loans and advances made by [reserved];
(d) subject to compliance with Section 10.5, Indebtedness of the Borrower to or any Restricted Subsidiary or made by any Restricted Subsidiary owed to the Borrower or its any Restricted Subsidiaries so long as 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 an intercompany note and 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, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(de) subject to compliance with Section 10.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 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;
(f) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claimsclaims and similar obligations);
(e) subject to compliance with Section 11.5, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) 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 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fg) Guarantee Obligations (i) incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessorslessors and licensees, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(ivSection 10.5 (other than Investments permitted by Section 10.5(l) by reference to Section 10.1 and Section 10.5(q), ); provided that this clause (viii), (xv), (xviii) shall not be construed to limit the requirements of Section 10.1(d) and (xviie), or (iii) contemplated by the Plan;
(ih) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days ofto finance the purchase price, or assumed in connection withcost of design, the acquisition, construction, leaserepair, repairrestoration, replacement, expansion expansion, installation or improvement of fixed or capital assets to finance or otherwise in respect of Capital Expenditures, so long as such Indebtedness is incurred concurrently with or within 270 days of the acquisition, construction, lease, repair, replacement restoration, replacement, expansion, installation or improvement of such fixed or capital assets; (ii) assets or incurrence of such Capital Expenditure, and any Refinancing Indebtedness arising under Capital Leasesthereof, other than (A) Capital Leases in effect on the Funding Date and (B) Capital Leases entered into pursuant an aggregate principal amount not to subclause exceed (i) above the greater of (provided that, in the case of each of the foregoing subclauses (ix) $160,000,000 and (ii), the Borrower shall be in compliance on a pro forma basis after giving effect to the incurrence y) 20% of such Indebtedness with the Financial Performance Covenants, as such covenants are recomputed as at the last day of Consolidated EBITDA for the most recently ended Test Period as if such (calculated on a Pro Forma Basis) at the time of incurrence had occurred on or issuance plus the first day principal amount of such Test Period); and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness;
(h) Indebtedness Capital Leases outstanding on the Funding Date listed on Schedule 11.1 and Closing Date, in each case at any Permitted time outstanding plus (ii) solely in the case of any such Refinancing Indebtedness issued or incurred to Refinance such Indebtedness, the Refinancing Increased Amount with respect thereto;
(i) Indebtedness of a Person or Indebtedness attaching permitted to remain outstanding under the Plan, and to the assets 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 Person thatPermitted Acquisition, in either case, becomes a Restricted Subsidiary other permitted Investments or Capital Expenditures; provided that (A) if such Indebtedness is incurred or is assumed by a Restricted Subsidiary that survives is not 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 SubsidiaryCredit Party, in each case after the Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(B) such Indebtedness is not guaranteed in any respect by the Borrower or any Restricted Subsidiary other Guarantor except as permitted under Section 10.5, (other than any such Person that so becomes a Restricted Subsidiary B) the aggregate principal amount of Indebtedness incurred or is the survivor of a merger with such Person or any of its Subsidiaries),
(Cassumed under this Section 10.1(k)(i) shall not exceed (1) the Stock greater of such Person is pledged to the Administrative Agent to the extent required under Section 10.10(c(x) $160,000,000 and (2y) such Person executes a supplement to each 20% of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of Consolidated EBITDA for the most recently ended Test Period as if such assumption and acquisition had occurred (calculated on a Pro Forma Basis) at the first day time of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and incurrence or issuance plus (2) such Person executes additional amounts if, on a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) Pro Forma Basis after giving effect to the incurrence or assumption of any 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 acquisition Permitted Acquisition or similar Investment and (C) if such Permitted Other Debt incurred (and for the avoidance of doubt, not “assumed”) pursuant to any related pro forma adjustmentthis 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 Borrower Initial Term Loans shall be subject to the adjustment (if applicable) set forth in compliance on a pro forma basis 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 Financial Performance Covenantstotal amount of Indebtedness incurred by Restricted Subsidiaries that are not Subsidiary Guarantors pursuant to Section 10.1(ee), as such covenant are recomputed as at shall not exceed the last day greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period as if such incurrence and acquisition had occurred (calculated on the first day of such Test Period;
(Ca Pro Forma Basis) 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 Maturity Date (determined at the time of issuance incurrence or incurrence); andissuance, in each case at any time outstanding;
(Dl) 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 is 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 guaranteed in connection with the borrowing of money;
(p) Indebtedness arising from agreements of the Borrower or any respect 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 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 Guarantor except 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 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) 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); (ii) 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 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 than the United States;
(cc) Indebtedness owing to the seller of any business or assets permitted to be acquired by the Borrower or any Restricted 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 11.5;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 Indebtedness incurred under any other 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 dividends, the 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
Appears in 1 contract
Limitation on Indebtedness. The Borrower Parent will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist (collectively, “incur” and collectively, an “incurrence”) any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness arising under the Credit DocumentsDocuments or any Credit Agreement Refinancing Indebtedness (including pursuant to any Refinancing Amendment) and (ii) so long as the Revolving Credit Agent shall have entered into the ABL Intercreditor Agreement as the “Revolving Credit Agent”, Indebtedness arising under the Revolving Loan Credit Agreement in a principal amount not exceeding at any one time outstanding the greater of (A) $1,300,000,000 and (B) the Borrowing Base;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect the Parent or any Credit Party owing to the Parent or any Restricted Subsidiary of the Senior Notes Parent, provided that such Indebtedness must be unsecured and expressly subordinated to Full Payment on such terms that are set forth in Exhibit N, (ii) any feesRestricted Subsidiary who is not a Credit Party owing to any other Restricted Subsidiary who is not a Credit Party and (iii) subject to compliance with Section 8.05, underwriting discounts, premiums and other costs and expenses incurred in connection with the foregoing and any Permitted Refinancing Indebtedness issued or incurred Restricted Subsidiary who is not a Credit Party owing to Refinance such Indebtednessany Credit Party;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(d) Indebtedness in respect of any bankers’ acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course Ordinary Course of business Business (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 with respect to reimbursement-type obligations regarding workers compensation claims);
(ed) subject to compliance with Section 11.58.05 at the time of incurrence, Guarantee Obligations incurred by (i) Restricted Subsidiaries of the Parent in respect of Indebtedness of the Borrower Parent 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower Parent in respect of Indebtedness of the Restricted Subsidiaries of the Parent that is permitted to be incurred under this Agreement; , provided that that, except as provided in clauses (i) and (j) below, there shall be no Guarantee (A) if the by a Restricted Subsidiary that is not a Guarantor of any Indebtedness being guaranteed under this Section 11.1(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 any Credit Party and (B) no guarantee by any Restricted Subsidiary in respect of any Permitted Additional Debt (or Indebtedness under clause (b) above) shall be permitted Debt, unless such Restricted Subsidiary shall have also provided Guarantee is made by a guarantee of the Obligations substantially on the terms set forth Guarantor and, in the Guaranteecase of Permitted Additional Debt that is subordinated is subordinated;
(fe) Guarantee Obligations (i) incurred in the ordinary course Ordinary Course of business Business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, lessors and licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii)Section 8.05;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; , (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding 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)) above, provided, that the Borrower aggregate amount of Indebtedness incurred pursuant to this subclause (iii) shall be in compliance not exceed an amount at any time outstanding, equal to the greater of (A) $50,000,000 and (B) 2.50% of Consolidated Total Assets on a pro forma basis after giving effect to the date of the incurrence of such Indebtedness, and (iv) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i), (ii) or (iii) above, provided that, except to the extent otherwise expressly permitted hereunder, (x) the principal amount thereof (including pursuant to clause (iii)) does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension, (y) the Financial Performance Covenantsdirect and contingent obligors with respect to such Indebtedness are not changed and (z) if the Indebtedness being modified, as replaced, refinanced, refunded, renewed, replaced or extended was subject to an Intercreditor Agreement, the holders of such covenants are recomputed as at the last day of the most recently ended Test Period as modified, replaced, refinanced, refunded, renewed, replaced or extended Indebtedness (if such incurrence had occurred Indebtedness is secured) or their representative on their behalf shall be or shall become party to such Intercreditor Agreement;
(g) Indebtedness outstanding on the first day Closing Date listed on Schedule 8.01(g) and any modification, replacement, refinancing, refunding, renewal or extension thereof, provided that, except to the extent otherwise expressly permitted hereunder, (i) the principal amount thereof does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder, (ii) the direct and contingent obligors with respect to such Test Period)Indebtedness are not changed; and (iii) any Permitted Refinancing if the Indebtedness issued being modified, replaced, refinanced, refunded, renewed, replaced or incurred extended was subject to Refinance any an Intercreditor Agreement, the holders of such Indebtednessmodified, replaced, refinanced, refunded, renewed, replaced or extended Indebtedness (if such Indebtedness is secured) or their representative on their behalf shall be or shall become party to such Intercreditor Agreement;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect of Hedge Agreements;
(i) (i) Indebtedness of a Person or Indebtedness attaching to the assets of a Person that, in either case, becomes a Restricted Subsidiary Credit Party (or is a Restricted Subsidiary Credit Party that survives a merger with such Person or any of its SubsidiariesPerson) or Indebtedness attaching to the assets that are acquired by the Borrower Parent or any Restricted SubsidiaryCredit Party, in each case after the Funding Closing Date as the result of a Permitted Acquisition; provided that:
, provided, that (A) such Indebtedness existed at the time such Person became a Restricted Subsidiary Credit Party or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
, (B) such Indebtedness is not guaranteed in any respect by the Borrower Parent or any Restricted Subsidiary Credit Party (other than by any such Person that so becomes a Restricted Subsidiary Credit Party or is the survivor of a merger with such Person or and any of its Subsidiaries),
) and (C) (1C)(I) the Stock Equity Interests of such Person is pledged to the Administrative Collateral Agent to the extent required under Section 10.10(c) 7.12 and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2II) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement to the extent required under Sections 7.11 or 7.12, as applicable, provided that the requirements of this subclause (C) shall not apply to (1) an aggregate amount at any time outstanding of up to the greater of (x) $150,000,000 or (y) 8.00% of Consolidated Total Assets at the time of the incurrence of such Indebtedness (less all Indebtedness as to which Section 8.01(j)(i)(B) below then applies, or that constitutes a modification, replacement, refinancing, refunding, renewal or extension pursuant to Section 8.01(i)(ii) or Section 8.01(j)(ii), as applicable) and delivers (2) any Indebtedness of the type that could have been incurred under Section 8.01(f), and (ii) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise expressly permitted hereunder, (A) the principal amount of any such Indebtedness does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus other Security Documentsreasonable amounts paid and fees and expenses incurred in connection with such modification, in each casereplacement, refinancing, refunding, renewal or extension plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder, (B) the direct and contingent obligors with respect to such Indebtedness are not changed and (C) if the Indebtedness being modified, replaced, refinanced, refunded, renewed, replaced or extended was subject to an Intercreditor Agreement, the holders of such modified, replaced, refinanced, refunded, renewed, replaced or extended Indebtedness (if such Indebtedness is secured) or their representative on their behalf shall be or shall become party to such Intercreditor Agreement;
(j) (i) Permitted Additional Debt of the Parent or any Restricted Subsidiary of the Parent, including Permitted Additional Debt incurred to finance a Permitted Acquisition, provided that (A) no Default or Event of Default exists or would exist after giving effect thereto, (B) if such Indebtedness is incurred by a Restricted Subsidiary that is not a Credit Party, such Indebtedness is not guaranteed by a Credit Party except as permitted by Section 8.05(g) and (C) if such Indebtedness is incurred to finance a Permitted Acquisition, (I) the Parent or another Credit Party pledges the Equity Interests of such acquired Person to the Collateral Agent to the extent required under Section 10.107.12 and (II) such acquired Person executes a supplement to the Guarantee and the Security Agreement (or alternative guarantee and security arrangements in relation to the Obligations reasonably acceptable to the Administrative Agent) to the extent required under Section 7.11 or 7.12, as applicable; provided that the requirements of this subclause (B) shall not apply to an aggregate amount at any time outstanding of up to the greater of (x) $150,000,000 or (y) 8.00% of Consolidated Total Assets at the time of the incurrence of such Indebtedness (less all Indebtedness as to which Section 8.01(i)(i)(C) above then applies, or that constitutes a modification, replacement, refinancing, refunding, renewal or extension pursuant to Section 8.01(i)(ii) or Section 8.01(j)(ii), as applicable), and (ii) any modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise expressly permitted hereunder, (A) the principal amount of any such Indebtedness does not exceed the principal amount thereof outstanding immediately prior to such modification, replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses incurred in connection with such modification, replacement, refinancing, refunding, renewal or extension plus an amount equal to any existing commitment unutilized and letters of credit undrawn thereunder, (B) the direct and contingent obligors with respect to such Indebtedness are not changed and (C) if the Indebtedness being modified, replaced, refinanced, refunded, renewed, replaced or extended was subject to an Intercreditor Agreement, the holders of such modified, replaced, refinanced, refunded, renewed, replaced or extended Indebtedness (if such Indebtedness is secured) or their representative on their behalf shall be or shall become party to such Intercreditor Agreement;
(Bk) after giving effect 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, including those incurred to secure health, safety and environmental obligations in the incurrence Ordinary Course 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 Covenants, as such covenant are recomputed as at the last day of the most recently ended Test Period as if such incurrence and acquisition had occurred on the first day of such Test PeriodBusiness;
(Cl) (i) Indebtedness incurred in connection with any Permitted Sale Leaseback (provided that the Net Cash Proceeds thereof are promptly applied to the prepayment of the Term Loans to the extent required by Section 4.02) and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that, except to the extent otherwise permitted hereunder, (A) the maturity principal amount of any such Indebtedness is not earlier thanincreased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension, (B) the direct and no mandatory repayment contingent obligors with respect to such Indebtedness are not changed and (C) if the Indebtedness being modified, replaced, refinanced, refunded, renewed, replaced or redemption extended was subject to an Intercreditor Agreement, the holders of such modified, replaced, refinanced, refunded, renewed, replaced or extended Indebtedness (other than customary change if such Indebtedness is secured) or their representative on their behalf shall be or shall become party to such Intercreditor Agreement;
(i) additional Indebtedness and (ii) any refinancing, refunding, renewal or extension of control any Indebtedness specified in subclause (i) above, provided that, (A) the direct and contingent obligors with respect to such Indebtedness are not changed and (B) if the Indebtedness being refinanced, refunded, renewed or asset sale offers extended was subject to an Intercreditor Agreement, the holders of such refinanced, refunded, renewed or upon extended Indebtedness (if such Indebtedness is secured) or their representative on their behalf shall be or shall become party to such Intercreditor Agreement; provided, further that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (m) shall not at any event time exceed an amount equal to the greater of default(A) is required prior to$150,000,000 and (B) 8.00% of Consolidated Total Assets on the date of the incurrence of such Indebtedness;
(n) Indebtedness incurred by Restricted Subsidiaries that are Foreign Subsidiaries; provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (n) shall not at any time exceed, 91 days after an amount, in the Maturity Date aggregate, at any time outstanding, equal to the greater of (determined i) $125,000,000 and (ii) 6.50% of Consolidated Total Assets at the time of issuance or incurrence); andthe incurrence of such Indebtedness;
(Do) Indebtedness incurred by Restricted Subsidiaries that are not Credit Parties so long as (i) the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (o) shall not at any time exceed, an amount, in the aggregate, at any time outstanding, equal to the greater of (A) $125,000,000 and (B) 6.50% of Consolidated Total Assets at the time of the incurrence of such Indebtedness and (ii) such Indebtedness matures no earlier than 91 days subsequent to the maturity of the initial Term Loans;
(p) Indebtedness in respect of overdraft facilities, employee credit card programs and other cash management arrangements in the Ordinary Course of Business and, with regard to Restricted Subsidiaries that are not Credit Parties, Indebtedness in respect of cash pooling arrangements in the Ordinary Course of Business;
(q) unsecured Indebtedness in respect of obligations of the Parent or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services, provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligation) in the Ordinary Course of Business and not in connection with the borrowing of money or Hedge Agreements;
(r) Indebtedness arising from agreements of the Parent or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case entered into in connection with Permitted Acquisitions, other Investments and the disposition of any business, assets, or Equity Interests permitted hereunder, other than Guarantee Obligations incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing such acquisition, provided that (i) such Indebtedness is not guaranteed in any respect by reflected on the Borrower balance sheet of the Parent or any Restricted Subsidiary Guarantor except to the extent permitted under Section 11.5;(cont
Appears in 1 contract
Limitation on Indebtedness. The Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness of (including Guarantee Obligations thereunderi) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by of the Borrower and (ii) any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to any other Subsidiary of the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequencesBorrower;
(dc) Indebtedness in respect of any bankers’ ' acceptance, bank guarantees, letter of credit, warehouse receipt or similar facilities entered into in the ordinary course of business (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 with respect to reimbursement-type obligations regarding workers compensation claims)business;
(ed) subject to compliance with Section 11.5except as provided in clauses (j) and (k) below, Guarantee Obligations incurred by (i) Restricted Subsidiaries in respect of Indebtedness of the 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 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of the Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if the Indebtedness being guaranteed under this Section 11.1(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 of any Permitted Additional Debt (or Indebtedness under clause (b) 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;
(fe) Guarantee Obligations (i) 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 11.5(b)(iv), (viii), (xv), (xvi) lessors and (xvii)licensees;
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, of the acquisition, construction, lease, repair, replacement, expansion construction or improvement of fixed or capital assets to finance the acquisition, construction, lease, repair, replacement expansion, construction or improvement of such fixed or capital assets; assets or otherwise incurred in respect of Capital Expenditures permitted by Section 10.12, (ii) Indebtedness arising under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than (A) Capital Leases in effect on the Funding Original 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)) above, provided that the Borrower shall be in compliance on a pro forma basis after giving effect aggregate amount of Indebtedness incurred pursuant to the incurrence of such Indebtedness with the Financial Performance Covenants, as such covenants are 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); subclauses (i) and (iii) shall not exceed $25,000,000 at any Permitted Refinancing time outstanding, and (iv) any refinancing, refunding, renewal or extension of any Indebtedness issued specified in subclause (i), (ii) or incurred (iii) above, provided that the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to Refinance such refinancing, refunding, renewal or extension;
(g) Indebtedness outstanding on the Restatement Date and listed on Schedule 10.1 and any refinancing, refunding, renewal or extension thereof, provided that (i) the principal amount thereof is not increased above the principal amount thereof outstanding immediately prior to such Indebtednessrefinancing, refunding, renewal or extension, except to the extent otherwise permitted hereunder, and (ii) the direct and contingent obligors with respect to such Indebtedness are not changed;
(h) Indebtedness outstanding on the Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtednessin respect of Hedge Agreements;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such IndebtednessSubordinated Notes;
(j) Indebtedness of Restricted Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed (i) $25,000,000 minus (ii) the amount, if any, by which the aggregate amount of Indebtedness incurred and outstanding at such time pursuant to clause (l) below exceeds (x) $70,000,000 at any time prior to the Perfection Date or (y) $50,000,000 at any time on or after the Perfection Date, provided that no Indebtedness (other than under facilities in effect on the Restatement Date) may be incurred pursuant to this clause (j) prior to the Perfection Date;
(i) Indebtedness incurred to finance a in connection with any Permitted Acquisition; Sale Leaseback and (ii) any refinancing, refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided that:, except to the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with respect to such Indebtedness are not changed;
(i) additional Indebtedness, provided that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to this clause (l) shall not at any time exceed the sum of (A) (1x) the Stock of the Person acquired is pledged $70,000,000 at any time prior to the Administrative Agent to Perfection Date or (y) $50,000,000 at any time on or after the extent required under Section 10.10(c) Perfection Date and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(B) after giving effect to the incurrence amount, if any, by which $25,000,000 exceeds the aggregate amount of Indebtedness then outstanding under clause (j) above, and (ii) any refinancing, refunding, renewal or extension of any such Indebtedness, to such acquisition Indebtedness specified in subclause (i) above and to any related pro forma adjustmentprovided further that until the Perfection Date, the Borrower shall be in compliance on a pro forma basis with may incur or have outstanding Indebtedness under this clause (l) only pursuant to the Financial Performance Covenants, as such covenant are recomputed as at the last day of 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 Maturity Date (determined at the time of issuance or incurrence)▇▇▇▇▇▇ Facility; and
(Dm) Indebtedness the proceeds of which are applied to redeem, repurchase, prepay or acquire Subordinated Notes so long as either (i)(x) no amortization is required in respect of such Indebtedness prior to the date that is six months after the Tranche C Maturity Date, (y) the covenants and other terms governing such Indebtedness are no more restrictive than those contained in the instruments governing the Subordinated Notes and are otherwise not materially more adverse to the interests of the Lenders and (z) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except subordinated to the extent permitted under Loans in right of payment on terms no less favorable to the Lenders than the subordination terms of the Subordinated Notes or (ii) such Indebtedness satisfies the requirements of clause (y) of Section 11.5;10.7(a)(ii).
Appears in 1 contract
Limitation on Indebtedness. The Borrower will Issuer shall not, and will shall not permit any of the Restricted Subsidiaries Issuer Subsidiary to, incur, create, incurissue, assume assume, guarantee or suffer otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, whether present or future (in any such case, to exist “Incur”), Indebtedness. Notwithstanding the foregoing, the Issuer and any Indebtedness other than Issuer Subsidiary may Incur each and all of the following:
(a) Indebtedness arising under the Credit Documents;
(b) Indebtedness (including Guarantee Obligations thereunder) in respect of the Senior 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 Refinance such Indebtedness;
(c) Intercompany loans and advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Borrower or its Restricted Subsidiaries so long as such Indebtedness is evidenced by an intercompany note and subject to subordination terms acceptable to the Administrative Agent, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences;
(di) Indebtedness in respect of any bankers’ acceptanceInitial Notes;
(ii) Indebtedness in respect of any Refinancing Notes; provided that (A) the prior written consent of the Liquidity Facility Provider (unless the Liquidity Facility Non-Consent Event has occurred) has been obtained with respect to such Refinancing and (B) the net proceeds of any such Refinancing shall be applied only (x) to repay the Redemption Price related thereto plus the Refinancing Expenses of the subclass of Notes being so refinanced and pay any obligations then due and owing to the Holders of the Class A Notes or the Class B Notes, bank guaranteesas applicable, letter and (y) to fund any Cash Collateral Account established for the related Refinancing Notes (up to the Required Amount therefor); provided further, that if any subclass of creditClass A Notes or Class B Notes, warehouse receipt as applicable, (other than such Refinancing Notes) are outstanding following such Refinancing, a Rating Agency Confirmation shall be obtained with respect to such subclass of Class A Notes or similar facilities entered into such subclass of Class B Notes, as applicable.
(iii) Indebtedness in respect of guarantees by any Issuer Group Member in favor of Lessees, or otherwise related to the Aircraft that are in the ordinary course of business (including and that are in respect of workers compensation claimsthe obligations of other Issuer Group Members;
(iv) Indebtedness in respect of any Additional Notes (including Class E Notes) the net proceeds of which are applied (A) to finance a Permitted Additional Aircraft Acquisition, health(B) to fund any Cash Collateral Account established for such Additional Notes (up to the Required Amount therefor) and (C) to fund expenses related thereto; provided that (x) the prior written consent of the Liquidity Facility Provider (unless the Liquidity Facility Non-Consent Event has occurred) is obtained prior to the Incurrence of such Indebtedness and (y) such Additional Notes will be cross-collateralized with all Secured Obligations by the Collateral under the Security Trust Agreement; provided further, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness that with respect to reimbursement-type obligations regarding workers compensation claims)any such Additional Notes, a Rating Agency Confirmation shall be obtained with respect to such Additional Notes that are Class A Notes or Class B Notes, as applicable;
(ev) subject obligations to compliance each Seller under each Acquisition Agreement and any related lease assignment and assumption agreements and the documents related thereto, including any Indebtedness owed to any Lessee under any such agreement or the Lease with Section 11.5respect to maintenance contributions;
(vi) Any Indebtedness under any agreements between the Issuer or any Issuer Subsidiary and any other Issuer Group Members (each, Guarantee Obligations incurred by an “Intercompany Loan”); provided such indebtedness shall be evidenced in writing and that the agreements or promissory notes evidencing such Indebtedness shall be pledged to the Security Trustee and written notification shall have been given to each Rating Agency and the Liquidity Facility Provider of the Incurrence of such Indebtedness;
(ivii) Restricted Subsidiaries Indebtedness of the Issuer under any Eligible Credit Facility, provided that a Rating Agency Confirmation and the prior written consent of the Liquidity Facility Provider is obtained prior to entering into any new Eligible Credit Facility; and
(viii) Indebtedness of the Issuer in respect of Indebtedness of the 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 notany Additional Class E Note, by virtue of this Section 11.1(e) guarantee Indebtedness that such Restricted Subsidiary could not otherwise incur under this Section 11.1) and (ii) the Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to be incurred under this Agreement; provided that (A) if a Rating Agency Confirmation and the Indebtedness being guaranteed under this Section 11.1(e) prior written consent of the Liquidity Facility Provider is subordinated obtained prior to the Obligationsissuance of any such Additional Class E Note, 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 each Additional Class E Note shall be unsecured and neither any Restricted Subsidiary such Additional Class E Note or the holders thereof shall be given or deemed to have any Encumbrance on any asset of any Permitted Additional Debt (or Indebtedness under clause (b) 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) incurred in the ordinary course of business in respect of obligations of (or to) suppliersIssuer Group Member, customers, franchisees, lessors, licensees or sublicensees or (ii) otherwise constituting Investments permitted by Sections 11.5(b)(iv), (viii), (xv), (xvi) and (xvii);
(i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270 days of, or assumed in connection with, the 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 Funding 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 Covenants, as such covenants are 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 Funding Date listed on Schedule 11.1 and any Permitted Refinancing Indebtedness issued or incurred to Refinance such Indebtedness;
(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 Funding Date as the result of a Permitted Acquisition; provided that:
(A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof,
(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 Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, whether through the Security Trust Agreement or otherwise, and the Pledge Agreement, in each case to the extent required under Section 10.10; provided that the assets covered by such pledges and security interests may, to the extent permitted by Section 11.2, equally and ratably secure such Indebtedness assumed with the 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 11.1(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 Covenants, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such assumption and acquisition had occurred on the first day of such Test Period;
(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) (i) Indebtedness incurred to finance a Permitted Acquisition; provided that:
(A) (1) the Stock of the Person acquired is pledged to the Administrative Agent to the extent required under Section 10.10(c) and (2) such Person executes a supplement to each of the Guarantee, the Security Agreement and the Pledge Agreement and delivers any other Security Documents, in each case, to the extent required under Section 10.10;
(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 Covenants, as such covenant are recomputed as at the last day of 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 terms of any such Indebtedness is not earlier than, and Additional Class E Note shall contain no mandatory repayment or redemption (other than customary change provision inconsistent with the terms of control or asset sale offers or upon any event of default) is required prior to, 91 days after the Maturity Date (determined at the time of issuance or incurrence); and
(D) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary Guarantor except to the extent permitted under Section 11.5;this Indenture.
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