Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except: (a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b)); (b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent; (c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof; (d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases; (e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof; (f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding; (g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties; (h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness; (i) Indebtedness owed by any Credit Party to another Credit Party; (j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness; (k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); (l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms; (m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h); (n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money; (o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder; (p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and (q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Sources: Credit Agreement (CoreCivic, Inc.)
Limitations on Indebtedness. Create(a) The Company will not, incurand will not permit any Restricted Subsidiary to, assume create, issue, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner become liable in respect of any additional Current Debt or Funded Debt except:
(a1) the Obligations Notes;
(excluding Hedging Obligations permitted pursuant 2) Current Debt and Funded Debt of the Company and its Restricted Subsidiaries outstanding as of the date of this Agreement and described on Schedule II attached hereto;
(3) Current Debt or Funded Debt of the Company and its Restricted Subsidiaries; provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, Consolidated Funded Debt would not exceed 55% of Consolidated Total Capitalization, provided that for purposes of any determination of additional Funded Debt to be issued or incurred within the limitation of this Section 10.1(b5.6(a)(3));, the Average Outstanding Balance of Consolidated Current Debt (as defined in Section 5.6(e) below) computed for the Compliance Period (as defined in Section 5.6(e) below) preceding the date of any such determination shall be deemed to constitute outstanding Funded Debt of the Company incurred as of the last day of such Compliance Period and, except to the extent that any such Current Debt was refinanced with Funded Debt, in which case such Current Debt, to the extent it was refinanced with Funded Debt, will not be deemed to constitute Funded Debt, shall be deemed outstanding at all times prior to the end of the next Compliance Period; and
(4) additional Current Debt or Funded Debt of a Restricted Subsidiary to the Company or to an Eighty Percent-Owned Restricted Subsidiary.
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty The Company will not at any time permit the sum of (i) Current Debt and upon terms Funded Debt of Restricted Subsidiaries (other than Current Debt and conditions (including interest rate) reasonably satisfactory Funded Debt owed to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory Company or an Eighty Percent-Owned Restricted Subsidiary), plus (ii) Funded Debt of the Company and Restricted Subsidiaries secured by Liens permitted by Section 5.7(a)(9) to the Administrative Agent;exceed 25% of Consolidated Tangible Assets.
(c) Indebtedness Any Person which becomes a Restricted Subsidiary after the date hereof shall for all purposes of this Section 5.6 be deemed to have created, assumed or incurred or issued at the time it becomes a Restricted Subsidiary all Current Debt and Funded Debt of such Person existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;immediately after it becomes a Restricted Subsidiary.
(d) Indebtedness The renewal, extension or refunding of any Current Debt or Funded Debt issued or incurred in accordance with the limitations of this Section 5.6 shall constitute the issue of additional Current Debt or Funded Debt, as the case may be, which is, in turn, subject to the limitations of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;applicable provisions of this Section 5.6.
(e) purchase money Indebtedness For the purposes of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(fSection 5.6(a) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarterhereof, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) following terms shall have the right meanings ascribed to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.them below:
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust IndebtednessGuarantor under this Agreement or the Subsidiary Guaranty;
(kb) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional other Indebtedness of the Borrower or any of its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrowso long as, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day date of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarterincurrence thereof, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist have occurred or be continuing and would result therefrom, provided that the aggregate principal amount of all Indebtedness of all Subsidiaries that are not Subsidiary Guarantors (ivother than Depositary Institutions) the documentation governing such Indebtedness contains customary market termsshall not exceed $25,000,000 at any time;
(mc) additional secured Indebtedness not otherwise permitted of the Borrower and its Subsidiaries outstanding on the Effective Date which is of the type described in clause (i) below and which is described in Schedule 6.02;
(i) Indebtedness of the Borrower and any Subsidiary Guarantor pursuant to this Section the Senior Note Indenture in an aggregate principal amount outstanding not to exceed an amount equal $250,000,000 at any one time outstanding and (ii) Indebtedness of the Borrower or any Subsidiary Guarantor issued in exchange for, or the net proceeds of which are used to ten percent extend, refinance, renew, replace, defease, redeem or refund the Indebtedness referred to in clause (10%i) of Consolidated Tangible Assets, determined, with respect to each incurrence this subsection (d) (A) the terms of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant provided to clauses the Lenders at least seven Business Days before the date of such renewal, refinancing, extension or modification, (aB) which do not shorten the date for payment of interest thereon or shorten the maturity (or weighted average life) or increase the principal amount thereof and which, after giving effect thereto, contain terms and conditions (including, without limitation, covenants and events of default) that are no less favorable taken as a whole to the Lenders in any material respect than the terms and conditions thereof applicable before giving effect thereto, and (b), respectively, of Section 7.1 (it being understood C) at any time that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this not have occurred and be continuing or would result therefrom;
(e) Indebtedness arising out of any Receivables Transfer Program;
(f) Indebtedness in connection with loans and advances permitted by Section 10.1(m6.06(d);
(g) retroactively); provided Indebtedness in respect of deposits held by any Depositary Institution;
(h) Indebtedness of any Depositary Institution (other than in respect of deposits held by such Depositary Institution) so long as the aggregate outstanding principal amount thereof does not, at any time when such Depositary Institution is not Investment Grade, exceed 75% of the DI Consolidated Tangible Net Worth (excluding DI Cumulative Securitization Gains) of such Depositary Institution at such time, provided, that (i) Indebtedness incurred by a Depositary Institution pursuant to this clause (h) when it is Investment Grade shall count as usage of such amount if such Depositary Institution ceases to be Investment Grade and (ii) if the aggregate outstanding principal amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of such Depositary Institution ceases to be Investment Grade exceeds the incurrence of amount that would otherwise be permitted by this clause (h), such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no excess shall not result in a Default or Event of Default shall exist or be continuing and under this clause (ivh) notwithstanding the Consolidated Total Leverage Ratio at so long as no additional Indebtedness is incurred by such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause Depositary Institution while it is not Investment Grade; and
(i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted SubsidiarySubsidiary (which in each case may be secured pursuant to Section 6.03(b)) that is either (x) incurred to finance the acquisition, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower construction or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that improvement of any other Person andfixed or capital assets, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) including Capital Lease Obligations and any Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof (provided that such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement) or (y) assumed in connection with the merger, consolidation or acquisition of a Person or substantially all of its assets existing at the time such Person is merged into or consolidated with the Borrower or any Subsidiary or at the time of acquisition thereof, as the case may be, by the Borrower or a Subsidiary (provided that such Indebtedness was in existence prior to the contemplation of such merger, consolidation or acquisition); provided that the aggregate principal amount of all Indebtedness incurred pursuant to this clause (i) shall not exceed $50,000,000. Notwithstanding anything to the contrary herein, no Released Subsidiary shall be permitted to be acquired hereunder;
(p) Guarantee any Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or (other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedanother Released Subsidiary).
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b)Obligations);
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty Agreement, in each case, incurred in the ordinary course of business and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentnot for speculative purposes;
(c) Indebtedness existing on the Closing Date and listed Fourth Amendment Effective Date, as set forth on Schedule 10.111.1, and any Refinancing Indebtedness the renewal, refinancing, extension and replacement (but not the increase in respect the aggregate principal amount) thereof;
(d) Indebtedness of the US Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesCapital Leases in an aggregate amount not to exceed (i) during the period prior to the Fourth Amendment Effective Date, $10,000,000 on any date of determination and (ii) on or after the Fourth Amendment Effective Date, the greater of (A) three percent (3%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the US Borrower and its Subsidiaries are available), and (B) $20,000,000;
(e) purchase money Indebtedness of the US Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, Subsidiaries in an aggregate amount not to exceed (i) during the period prior to the Fourth Amendment Effective Date, $100,000,000 10,000,000 on any date of determination and (ii) on or after the Fourth Amendment Effective Date, the greater of (A) three percent (3%) of Consolidated Total Assets (determined at any the time outstandingof incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the US Borrower and its Subsidiaries are available), and (B) $20,000,000;
(gf) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders (and their Affiliates, as applicable);
(hg) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (b) through (e) or subsections (p) and (q) of this Section; provided ;
(h) Indebtedness owed (i) by the US Borrower to any Subsidiary Guarantor, (ii) by any Subsidiary Guarantor to the US Borrower, (iii) by any Subsidiary Guarantor to any other Subsidiary Guarantor, or (iv) by any Subsidiary that is not a Subsidiary Guarantor to any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtednessother Subsidiary that is not a Subsidiary Guarantor;
(i) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Indebtedness owed by the US Borrower and any Subsidiary Guarantor to any Foreign Subsidiary or Indebtedness owed by any Credit Party Foreign Subsidiary to another Credit Partythe US Borrower and any Subsidiary Guarantor which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 11.3(i) and 11.5(f), does not exceed $60,000,000 in the aggregate during the period from the Closing Date through and including the Maturity Date;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Subordinated Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that in the case of each issuance of Subordinated Indebtedness, (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ivii) the documentation governing Administrative Agent shall have received satisfactory written evidence that the US Borrower and its Subsidiaries would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness contains customary market termsSubordinated Indebtedness;
(mk) additional secured Indebtedness of the US Borrower and the Subsidiary Guarantors not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal (i) during the period prior to ten the Fourth Amendment Effective Date, $10,000,000 and (ii) on or after the Fourth Amendment Effective Date, the greater of (A) three percent (103%) of Consolidated Tangible AssetsTotal Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the US Borrower and its Subsidiaries are available), determinedand (B) $20,000,000;
(l) so long as no Default or Event of Default has occurred and is continuing or would occur as a result therefrom, Indebtedness arising in connection with an Accounts Securitization;
(m) endorsements of negotiable instruments for deposit or collection in the ordinary course of business;
(n) unsecured Indebtedness in respect of performance bonds, worker’s compensation claims, surety or appeal bonds and payment obligations in connection with self insurance or similar obligations, in each case to each incurrence the extent incurred in the ordinary course of Indebtedness business;
(o) Guaranty Obligations consisting of an unsecured limited guaranty of certain of the obligations of Northpark Corporate Center, L.L.C. pursuant to this Section 10.1(m)that certain $9,400,000 loan agreement by and between Northpark Corporate Center, L.L.C. and ▇▇▇▇▇ Fargo; provided that such Guaranty Obligations shall be (i) in an aggregate principal amount not to exceed $9,400,000 and (ii) evidenced by a guaranty agreement in form and substance satisfactory to the Administrative Agent;
(p) Indebtedness in connection with the February 2007 Notes; and
(q) Indebtedness consisting of Qualified Unsecured Issuances and any refinancings, refundings, renewals or extensions thereof; provided that (i) such refinancing shall be on terms and conditions, satisfactory to the Administrative Agent, that are (A) consistent with the then-current market terms and conditions of such type of unsecured debt (as reasonably determined in good faith by the board of directors of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (aUS Borrower) and (b)B) no less favorable to the Lenders than the terms of the Qualified Unsecured Issuances, respectively, of Section 7.1 (it being understood that this Section 10.1(mii) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that have occurred and be continuing or would be caused by such refinancing, refunding, renewal or extension thereof, (iiii) the principal amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect increased at the time of the incurrence of such Indebtednessrefinancing, (iii) at the time of the incurrence of refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such Indebtedness and after giving effect theretorefinancing, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at final maturity date and weighted average life of such timerefinancing, a Springing Lien Event refunding, renewal or extension shall not be deemed prior to have occurred upon or shorter than that applicable to the use Indebtedness prior to such refinancing, refunding, renewal or extension and (v) such refinancing, refunding, renewal or extension shall (A) be unsecured, (B) not rank higher than pari passu with the Obligations and (C) not be guaranteed by any Person that has not also guaranteed all of the $250,000,000 basket pursuant Obligations. provided, that no agreement or instrument with respect to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice Indebtedness permitted to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of any Borrower to make any payment to such Borrower or any of its Restricted SubsidiariesSubsidiaries (in the form of dividends, including Indebtedness represented by letters of credit intercompany advances or otherwise) for the account purpose of enabling such Borrower to pay the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.
Appears in 1 contract
Sources: Credit Agreement (Pool Corp)
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer to exist otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness except:
(a) Indebtedness. Notwithstanding the Obligations (excluding Hedging Obligations permitted pursuant to foregoing limitations, the limitations of this Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory 1008 shall not apply to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness incurrence of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing following Indebtedness;:
(i) Indebtedness owed of the Company evidenced by the Securities, Indebtedness of any Credit Party to another Credit PartyGuarantor evidenced by the Guaranties with respect thereto and Indebtedness of the Company and of the Guarantors, as evidenced by and in respect of all other Transaction Documents;
(jii) Indebtedness evidenced by the New Tranche A Term Notes, Indebtedness in respect of the Term Loans, the Term Loan Agreement and all other obligations incurred thereunder;
(iii) Indebtedness of any Indenture Obligor or Obligor Subsidiaries constituting Existing Indebtedness and any extension, deferral, renewal, refinancing or refunding thereof, without increasing the Borrower or any Restricted Subsidiary consisting aggregate principal amount of Qualified Trust Indebtednesssuch Indebtedness then outstanding and covered thereby;
(kiv) Indebtedness of PCI and the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness Company in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of and in accordance with the terms of, the Exit Facility; provided that, notwithstanding the terms of the Senior Unsecured Notes may be secured by Exit Facility, the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence aggregate principal amount of Indebtedness had occurred on at any time outstanding under the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party Exit Facility shall not exceed $250,000,000, 50,000,000; 87 100 (iiv) such Indebtedness matures at least six (6) months after the later to occur Capitalized Lease Obligations of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default any Indenture Obligor or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Obligor Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower Capitalized Lease Obligations of any Indenture Obligor or its Restricted Subsidiaries Obligor Subsidiary secured by Liens that secure the payment of all or part of the purchase price of assets or property acquired or constructed in the ordinary course of businessbusiness after the Closing Date; provided provided, however, that the underlying obligation to perform is that aggregate principal amount of the Borrower or one of its Restricted Subsidiaries and not that of any other Person andsuch Capitalized Lease Obligations, provided, further, that including such underlying obligation is not Indebtedness in respect of borrowed money;
(o) Indebtedness Capitalized Lease Obligations of the Borrower consisting Indenture Obligors and all of customary indemnificationtheir respective Obligors Subsidiaries, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except does not exceed $10,000,000 in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.;
Appears in 1 contract
Sources: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. CreateIncur, create, assume or suffer to exist any preferred stock or Indebtedness, or permit any partnership or joint venture in which any Credit Party is a general partner to incur, create, assume or suffer to exist any Indebtedness exceptother than:
(a) the Indebtedness and other Obligations under this Credit Agreement;
(excluding Hedging b) to the extent not otherwise permitted hereunder, Indebtedness refinancing a portion of the Indebtedness and/or other Obligations under this Credit Agreement, other than the Revolving Credit Commitments, the Revolving Credit Loans and Letters of Credit hereunder; provided, that the terms of any such Indebtedness refinancing only a portion of the Indebtedness and other Obligations under this Credit Agreement shall have been approved in writing by the Agents and the Required Lenders;
(c) Indebtedness refinancing a portion of the Indebtedness and/or other Obligations under this Credit Agreement, other than the Revolving Credit Commitments, the Revolving Credit Loans and Letters of Credit hereunder; provided that any such Indebtedness refinancing only a portion of the Indebtedness and other Obligations under this Credit Agreement (i) (x) is unsecured or, (y) is Indebtedness the holders of which have recourse only to specified assets of the Credit Parties (and not to the Credit Parties in general) and which does not have a loan to value ratio in excess of the then customary loan to value ratio for such type of Indebtedness ("Permitted Nonrecourse Indebtedness"), or (z) is secured by assets reasonably related to the transaction and does not have a loan to value ratio in excess of the then customary loan to value ratio for such type of Indebtedness, and (ii) other than with respect to Permitted Nonrecourse Indebtedness, has terms, conditions and covenants not substantially more restrictive than those contained in this Credit Agreement and if applicable, has financial covenants which are no more restrictive than those contained in this Credit Agreement (provided, that the interest rate may be at the then prevailing rate for the same type of Indebtedness), and (iii) has a final maturity date, or a committed term ending, after December 31, 2007, and (iv) other than with respect to Permitted Nonrecourse Indebtedness, has aggregate required principal amortization payments in any year which do not exceed the aggregate amount of principal amortization payments required for such year by the terms of the Indebtedness being refinanced; and provided that with respect to any Indebtedness permitted pursuant under this Section 6.1(c), at least ten (10) Business Days prior to the issuance of any such refinancing Indebtedness, the Agents shall have received a certificate of an Authorized Officer of the Borrower confirming that such refinancing Indebtedness complies with the requirements set forth in this Section 10.1(b)6.1(c);
(bd) a Guaranty by a Credit Party of Indebtedness permitted to be incurred pursuant to Sections 6.1(b) and 6.1(c) hereof;
(e) Indebtedness in respect of Capital Leases to the extent permitted under Section 6.7 hereof;
(f) existing Indebtedness described on Schedule 6.1 hereto, but not any extensions or renewals or refinancings thereof unless effected (i) on substantially the same terms or terms more favorable to the applicable Credit Party or Subsidiary thereof which is the obligor of such Indebtedness (provided, that the interest rate may be at the then prevailing rate for the same type of Indebtedness) or (ii) on terms otherwise agreed to in writing by the Agents;
(g) Indebtedness in respect of intercompany advances constituting Investments permitted under Section 6.4 hereof;
(h) Indebtedness in respect of secured purchase money financing (including Capital Leases), to the extent permitted by Section 6.2(e);
(i) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, Interest Rate Protection Agreements to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or entered into by the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any applicable Credit Party to another Credit Partyas required by Section 5.15 hereof or for bona fide hedging purposes;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Sources: Credit Agreement (Ventas Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Notes and the Obligations (excluding Hedging Specified Hedge Obligations permitted pursuant to Section 10.1(b9.1(b))) or any guaranty of or suretyship arrangement for the Notes or other Obligations;
(b) Indebtedness incurred and obligations owing under Hedging Agreements entered into in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including order to manage existing or anticipated interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent, exchange rate or commodity price risks and not for speculative purposes;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section 9.1 and listed on Schedule 10.19.1, and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Consolidated Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesCapital Leases and purchase money Indebtedness in an aggregate amount not to exceed $15,000,000 at any time outstanding;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such PersonPerson in connection with an Investment permitted pursuant to Section 9.3, to the extent that (i) such Indebtedness was not incurred in connection with with, or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and (ii) neither the Borrower nor any Refinancing Indebtedness in Consolidated Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandingsuch Indebtedness;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(hf) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided Section 9.1;
(g) accounts payable (for the deferred purchase price of Property or services) from time to time incurred in the ordinary course of business which, if greater than 90 days past the invoice or billing date, are being contested in good faith by appropriate proceedings if reserves adequate under GAAP shall have been established therefor;
(h) Intercompany Debt, provided, that any guarantee such Intercompany Debt is (i) if in excess of Refinancing Indebtedness shall only be permitted if it meets $5,000,000, evidenced by an Intercompany Note which has been pledged to secure the requirements Obligations and is in the possession of the definition Collateral Agent, and (ii) in the case of Refinancing Indebtednessany Intercompany Debt owing to a Credit Party from a Consolidated Subsidiary (other than a Credit Party), subordinated to the Obligations upon terms and conditions satisfactory to the Collateral Agent;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(j) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds (including Indebtedness associated with bonds or surety obligations pursuant to any Applicable Law in connection with the operation of any Pipeline Properties), statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(k) Indebtedness of the Borrower to the General Partner to enable the General Partner to pay general and administrative costs and expenses of the Borrower in accordance with past practices;
(l) Indebtedness representing deferred compensation and other similar arrangements to employees of the Borrower and its Consolidated Subsidiaries incurred in the ordinary course of business;
(m) Indebtedness incurred by the Borrower or its Consolidated Subsidiaries in an acquisition or Asset Disposition under agreements providing for indemnification, the adjustment of the purchase price or other similar adjustments;
(n) Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with cash management or deposit accounts;
(o) Indebtedness incurred by the Borrower or any of its Consolidated Subsidiaries constituting reimbursement obligations with respect to letters of credit, bank guarantees or similar instruments issued 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 similar reimbursement type obligations; provided that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence;
(p) unsecured guarantees of Subsidiary obligations (other than obligations for borrowed money);
(q) Indebtedness of the Borrower incurred in connection with a senior or subordinated unsecured note offering, provided that (i) no Event of Default has occurred and is continuing or would occur after giving effect to such incurrence, (ii) after giving effect to the incurrence of such Indebtedness on a Pro Forma Basis, the Borrower shall be in compliance with all covenants set forth in Article VIII as of the most recently ended fiscal quarter of the Borrower, (iii) has a final maturity date no earlier than the date that is extinguished within five six months after the final maturity date of the Revolver Facility and (5iv) Business Days of incurrencethe documentation for which contains covenants no more restrictive than those set forth in this Agreement; and
(qr) additional Indebtedness not otherwise permitted pursuant to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, this Section 9.1 in an aggregate principal amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses 50,000,000 at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedoutstanding.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) Neither the Obligations Company nor any of its Restricted Subsidiaries may, directly or indirectly, Incur any Indebtedness except (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
i) Non-Recourse Indebtedness Incurred in the ordinary course of business; (bii) Indebtedness incurred in connection with a Hedging Agreement with a counterparty evidenced by Notes and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing Subsidiary Guarantees issued on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
Issue Date; (diii) Indebtedness of the Borrower Company solely to any Subsidiary Guarantor, Indebtedness of any Subsidiary Guarantor to any other Subsidiary Guarantor or to the Company or Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor to the Company or to any Restricted Subsidiary, provided that neither the Company nor any Restricted Subsidiary shall become liable to any Person with respect to such Indebtedness other than the Company or a Restricted Subsidiary; (iv) Refinancing Indebtedness (including any subsequent refinancing, extension, renewal, replacement or refunding thereof that satisfies the conditions set forth in the definition of "Refinancing Indebtedness") (A) of any Indebtedness permitted to be Incurred pursuant to clauses (ii) or (iv) of this paragraph (a) or the immediately following paragraph (b) or (B) of any Indebtedness to the extent outstanding on the Issue Date (other than under the Bank Credit Facility, the 1993 Notes or Capitalized Lease Obligations being repaid using proceeds from the sale of the Notes); (v) Indebtedness Incurred solely in respect of performance, completion, guaranty and its Restricted Subsidiaries similar bonds and similar purpose undertakings and Indebtedness under any ▇▇▇▇▇▇▇ money notes, tenders, bids, leases, statutory obligations, surety and appeal bonds, progress statements, government contracts, letters of credit, escrow agreements and other obligations of like nature and deposits made to secure performance of any of the foregoing, in each case in the ordinary course of business; (vi) Indebtedness incurred by the Company or any Subsidiary Guarantor under the Bank Credit Facility in connection with Finance Leases;an aggregate principal amount not to exceed $100,000,000 at any time, less the aggregate amount of all proceeds of sales or dispositions of assets applied to permanently reduce the outstanding amount (or, in the case of a revolving credit facility the committed amount) of such Indebtedness pursuant to Section 5.04 hereof and guaranties thereof by Subsidiary Guarantors; (vii)
(eA) purchase money Indebtedness which represents the assumption by the Company or a Restricted Subsidiary of Indebtedness of a Restricted Subsidiary permitted to be Incurred pursuant to the Borrower and its Restricted Subsidiariesterms of this First Supplemental Indenture, and any Refinancing Indebtedness in respect thereof;
(fB) Indebtedness of a Person existing at Subsidiary Guarantor represented by guaranties in respect of Indebtedness of the time such Person became Company or another Subsidiary Guarantor permitted to be Incurred pursuant to this First Supplemental Indenture and (C) Indebtedness of the Company represented by guaranties in respect of Indebtedness of a Subsidiary Guarantor permitted to be Incurred pursuant to this First Supplemental Indenture; (viii) other Indebtedness outstanding on the Issue Date, including the 1993 Notes; (ix) purchase money obligations and Capitalized Lease Obligations; and (x) Indebtedness of the Company or any Subsidiary Guarantor to any Unrestricted Subsidiary or any Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was that is not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, Guarantor in an aggregate amount not to exceed $100,000,000 20,000,000 at any one time outstanding;.
(gb) Guaranty Obligations in favor of Notwithstanding the Administrative Agent for foregoing, the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower Company and its Restricted Subsidiaries pursuant to that are Subsidiary Guarantors may Incur Indebtedness, in each case, if, at the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of time such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that is Incurred: (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing or would occur after giving effect to such transaction, and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and immediately after giving effect theretothereto (without duplication) on a pro forma basis, no Default or Event of Default shall exist or be continuing and either (ivA) notwithstanding the Consolidated Total Leverage Fixed Charge Coverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket Company on the date of such Incurrence is at least equal to 2.0 to 1 or (B) the ratio of Indebtedness of the Company and its Restricted Subsidiaries on a consolidated basis on the date of such Incurrence (excluding for purposes of such calculation other Indebtedness specifically permitted to be Incurred pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
or clause (nv) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or preceding paragraph), to Consolidated Net Worth of the Company is less than 3.25 to 1. Neither the Company nor any Restricted Subsidiary, Subsidiary shall incur any Indebtedness that is contractually subordinated in respect right of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation payment to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting Company or such Restricted Subsidiary unless such Indebtedness is also contractually subordinated in right of customary indemnificationpayment to the Notes on substantially identical terms; provided, deferred purchase price adjustments or similar obligationshowever, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) that no Indebtedness of the Borrower Company or any a Restricted Subsidiary arising from shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the honoring Company solely by a bank or other financial institution virtue of a checkbeing unsecured. Furthermore, draft or similar instrument (except for purposes of determining compliance with this covenant in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided event that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of proposed Indebtedness meets the criteria of more than one of the above clauses, the Borrower categories described in clauses (i) shall have through (x) of paragraph (a) above as of the right date of incurrence thereof, or is entitled to determine be Incurred pursuant to paragraph (b) of this covenant as of the date of incurrence thereof, the Company shall, in its sole discretion discretion, classify such item of Indebtedness on the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount date of such Indebtedness to more than one of such clauses, (iii) may elect its Incurrence in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedmanner that complies with this covenant.
Appears in 1 contract
Limitations on Indebtedness. CreateThe Company will not, incurand will not permit any of its Restricted Subsidiaries to, assume Incur any Indebtedness; provided that the Company or suffer any Restricted Subsidiary may Incur Indebtedness if, on the date of the Incurrence, after giving effect to exist any the Incurrence and the receipt and application of the proceeds therefrom, no Default has occurred and is continuing and the Leverage Ratio is not greater than 3.75 or less than zero and the Interest Expense Coverage Ratio is not less than 2.0. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may Incur the following Indebtedness except:if, on the date of the Incurrence, after giving effect to the Incurrence and the receipt and application of the proceeds therefrom, no Default has occurred and is continuing (Permitted Indebtedness):
(a) Indebtedness outstanding on the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Issuance Date, including any Notes issued on the Issuance Date;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentPermitted Refinancing Indebtedness;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereofSubordinated Indebtedness;
(d) Indebtedness Incurred for purposes of, and substantially all of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leasesproceeds of which are applied to, financing of Regulatory Capital Expenditures;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereofof Hedging Contracts;
(f) Indebtedness with respect to letters of a Person existing at credit, bankers’ acceptances and similar obligations issued in the time such Person became a Restricted Subsidiary or assets were acquired from such Personordinary course of business and not supporting Indebtedness, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition including performance bonds and letters of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandingcredit supporting performance bonds;
(g) Guaranty Obligations in favor Indebtedness of the Administrative Agent for Company or any of its Restricted Subsidiaries owed to the benefit Company or any of its Restricted Subsidiaries so long as such Indebtedness continues to be owed to the Secured Parties;Company or a Restricted Subsidiary and which, if the obligor is the Company and such Indebtedness is owed to such Restricted Subsidiary, is subordinated in right of payment and priority to the Notes, pursuant to a Subordination Agreement
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Sectionunder any one or more Permitted Receivables Financings, the combined aggregate principal amount of which does not exceed U.S.$35 million (or its equivalent in other currencies) at any time Outstanding; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;and
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section Incurred for general corporate purposes in an aggregate principal amount outstanding not to exceed an amount equal to ten percent U.S. $55 million (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries equivalent in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(ocurrencies) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedOutstanding.
Appears in 1 contract
Sources: Indenture (Edenor)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) The Company will not, and will not permit any Restricted Subsidiary to, Incur, directly or indirectly, any Indebtedness; provided, however, that the Obligations (excluding Hedging Obligations permitted pursuant Company may Incur Indebtedness if the Consolidated EBITDA Coverage Ratio at the date of such Incurrence and after giving effect thereto exceeds 2.25 to Section 10.1(b));1.0.
(b) Notwithstanding paragraph (a), the following Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall may be deemed satisfactory to the Administrative Agent;Incurred:
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d1) Indebtedness of the Borrower Company pursuant to one or more Credit Facilities (and its the guarantee of such Indebtedness by Restricted Subsidiaries incurred Subsidiaries); provided, however, that the aggregate amount of such Indebtedness outstanding at such time shall not exceed $350,000,000 less any amounts derived from Asset Sales and applied to the required permanent reduction of Senior Indebtedness (and a permanent reduction of the related commitment to lend or amount available to be reborrowed in connection with Finance Leasesthe case of a revolving credit facility) under such Credit Facilities as contemplated by Section 4.15;
(e2) purchase money Indebtedness of the Borrower Company or a Restricted Subsidiary owed to and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became held by a Restricted Subsidiary or assets were acquired from Indebtedness of a Restricted Subsidiary owed to and held by the Company; provided, however, that any subsequent issuance or transfer of any Capital Stock that results in such Person, Restricted Subsidiary to the extent such whom Indebtedness was not incurred in connection with or in contemplation of, such Person becoming is owed ceasing to be a Restricted Subsidiary or the acquisition any transfer of such assets Indebtedness (other than to the Company or another Restricted Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such Indebtedness;
(3) The Subsidiary Guarantees, if any, and Indebtedness incurred in exchange for, or the proceeds of which are used to Refinance any Refinancing Indebtedness permitted by this clause (3); provided, however, that (i) the principal amount of the Indebtedness so Incurred shall not exceed the principal amount of the Indebtedness so Refinanced (plus the amount of reasonable fees and expenses incurred in respect thereofconnection therewith, including any premium or defeasance costs) and (ii) the Indebtedness so Incurred (A) shall not mature prior to the Stated Maturity of the Indebtedness so Refinanced and (B) shall have an Average Life equal to or greater than the remaining Average Life of the Indebtedness so Refinanced;
(4) Indebtedness of the Company or any Restricted Subsidiary (other than Indebtedness described in clause (1), (2) or (3) above) (x) outstanding on the Issue Date (including without limitation, the Issuer Loans, the guarantee of the Company issued under the Secured Note Indenture and guarantees of any Subsidiaries of the Company issued thereunder, the Company's 6 1/2% Senior Notes due 2003, the Company's 6 3/4% Senior Notes due 2005, the Company's 6.95% Senior Notes due 2008, the Company's 7 3/8% Senior Notes due 2018, the Company's 9 1/8% Senior Notes due 2003, the Company's 9 1/2% Senior Notes due 2008, and the 10 1/4% Senior Notes due 2003 of Cliffs Drilling Company) or Incurred pursuant to agreements as in effect on the Issue Date and (y) Indebtedness Incurred in exchange for, or the proceeds of which are used to Refinance, any Indebtedness permitted by this clause (4) or permitted by clause (a) above; provided, however, that (i) the principal amount of the Indebtedness so Incurred shall not exceed the principal amount of the Indebtedness Refinanced (plus the amount of reasonable fees and expenses incurred in connection therewith, including any premium or defeasance costs); and (ii) the Indebtedness so Incurred (A) shall not mature prior to the Stated Maturity of the Indebtedness so Refinanced and (B) shall have an Average Life equal to or greater than the remaining Average Life of the Indebtedness so Refinanced;
(5) Indebtedness of the Company or any Restricted Subsidiary consisting of guarantees in connection with any synthetic lease obligations of Persons Incurred to finance the construction or upgrade of the drillship Deepwater Frontier and the drillship Deepwater Pathfinder pursuant to agreements governing such obligations;
(6) Acquired Indebtedness of any Restricted Subsidiary in an aggregate amount not to exceed $100,000,000 at any time outstanding300,000,000, provided that the Company on a pro forma basis could Incur $1.00 of additional Indebtedness pursuant to paragraph (a) of this covenant;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j7) Indebtedness of the Borrower Company or any Restricted Subsidiary consisting of Qualified Trust Indebtednessguarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets, including, without limitation, shares of Capital Stock;
(k8) The Incurrence by the Company's Unrestricted Subsidiaries of Non-Recourse Indebtedness; provided, however, that if any such Indebtedness ceases to be Non-Recourse Indebtedness of any Unrestricted Subsidiary, subject to the definition of "Unrestricted Subsidiary," such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Company that was not permitted by this clause (8);
(9) Obligations of the Company or a Restricted Subsidiary under performance or surety bonds relating to building contracts for the construction of drilling rigs, drillships or similar vessels or contracts for the installation of related equipment;
(10) Hedging Obligations; and
(11) Indebtedness of the Borrower and its Company or any Restricted Subsidiaries pursuant to the Senior Unsecured NotesSubsidiary in an aggregate principal amount which, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional together with all other Indebtedness of the Borrower Company then outstanding (other than Indebtedness permitted by clauses (1) through (10) of this paragraph (b) or its Restricted Subsidiaries that is unsecured paragraph (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrowa); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;does not exceed $50,000,000.
(mc) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses Notwithstanding paragraphs (a) and (b), respectively, ) of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on 4.9, the Company shall not issue any Indebtedness if the proceeds thereof are used, directly or indirectly, to repay, prepay, redeem, defease, retire, refund or refinance any Subordinated Obligations unless such Indebtedness on a prospective basis only and that no Default or Event shall be subordinated to the Notes to at least the same extent as such Subordinated Obligations.
(d) For purposes of Default shall occur under this Section 10.1(m) retroactively); provided that determining compliance with the foregoing covenant, (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided event that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clausestypes of Indebtedness described above, the Borrower (i) shall have the right to determine Company, in its sole discretion discretion, will classify such item of Indebtedness and only be required to include the clause to which amount and type of such Indebtedness is to be allocated, in one of the above clauses and (ii) shall not an item of Indebtedness may be required to allocate the amount of such Indebtedness to divided and classified in more than one of such clauses, (iii) may elect in its sole discretion to apportion such the types of Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifieddescribed above.
Appears in 1 contract
Sources: Indenture (R&b Falcon Corp)
Limitations on Indebtedness. Create(a) The Company will not, incurand will not permit any Subsidiary to, create, assume or suffer to exist incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Ordinary Course Indebtedness;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to evidenced by the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentNotes;
(c) Indebtedness existing on outstanding under the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness Bank Credit Agreement in respect thereofan aggregate principal amount not exceeding $75,000,000;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leasesoutstanding pursuant to Permitted Accounts Receivable Financing Facilities;
(e) purchase money Indebtedness of outstanding under the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness 1999 Note Purchase Agreement in respect thereofan aggregate principal amount not exceeding $50,000,000;
(f) Indebtedness of a Person existing secured purchase money Indebtedness, including Capitalized Lease Obligations, originally incurred to acquire fixed assets provided that at the time of such Person became a Restricted Subsidiary acquisition, the aggregate amount remaining unpaid on all such Indebtedness secured by Liens on such fixed assets, whether or assets were acquired from such Personnot assumed by the Company or its Subsidiaries, does not exceed an amount equal to the extent such Indebtedness was not incurred lesser of (i) 100%, in connection with the case of fixed assets which are personal property (including Capitalized Leases of fixed assets which are personal property) or (ii) 80%, in contemplation ofthe case of fixed assets which are real property, such Person becoming a Restricted Subsidiary of the lesser of the total purchase price or Fair Market Value at the acquisition time of such assets and any Refinancing Indebtedness acquisition as determined in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandinggood faith by the Board of Directors of the Company;
(g) Guaranty Obligations other Indebtedness for borrowed money; provided that (i) at the time of incurrence thereof, no Default or Event of Default shall exist, (ii) the aggregate outstanding principal amount of such Indebtedness plus (without duplication) the aggregate investment or claim held by purchasers of receivables in favor Foreign Receivable Financing Facilities shall not exceed 15% of Consolidated Net Worth at any time, (iii) the aggregate outstanding principal amount of all such Indebtedness of the Administrative Agent for Company or any Domestic Subsidiary (other than Indebtedness under Excluded Subsidiary Guaranties) shall not exceed 3% of Consolidated Net Worth at any time, and (iv) the benefit aggregate outstanding principal amount of all such Indebtedness of any Foreign Subsidiary plus (without duplication) the Secured Partiesaggregate investment or claim held by purchasers of receivables in Foreign Receivable Financing Facilities shall not exceed 15% of Consolidated Net Worth at any time;
(h) Guaranty Obligations Indebtedness under any Swap Contract with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee a term not greater than 184 days entered into in the ordinary course of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtednessbusiness for bona fide hedging purposes and not for speculation;
(i) Indebtedness owed of the Company which is not required to be redeemed, repurchased or otherwise prepaid by any Credit Party the Company (except on account of a default thereunder) on or prior to another Credit Party;March 1, 2010, and which Indebtedness is subordinated to other Indebtedness of the Company (including the Notes) on terms which are reasonably satisfactory to the holders of the Notes (such Indebtedness, "Subordinated Indebtedness"); and
(j) Indebtedness of refinancing or extending Indebtedness permitted above on terms and conditions no less favorable than the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of being refinanced; provided, however, that the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds principal amount of such Refinancing new Indebtedness if shall not exceed the outstanding principal amount of Indebtedness being refinanced immediately prior to such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries refinancing and that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, thereto no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;exits under this Agreement; and
(mb) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for Any corporation which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is becomes a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months Subsidiary after the later to occur date hereof shall for all purposes of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall this §5.11 be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness created, assumed or incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time it becomes a Subsidiary all Indebtedness of such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedcorporation existing immediately after it becomes a Subsidiary.
Appears in 1 contract
Sources: Note Agreement (K2 Inc)
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer to exist otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness except:
(a) Indebtedness. Notwithstanding the Obligations (excluding Hedging Obligations permitted pursuant to foregoing limitations, the limitations of this Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory 1008 shall not apply to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness incurrence of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing following Indebtedness;:
(i) Indebtedness owed of the Company evidenced by the Securities, Indebtedness of any Credit Party to another Credit PartyGuarantor in respect of the Guaranties with respect thereto and Indebtedness of the Obligors in respect of all other Indenture Obligations and Indenture Documents;
(jii) Indebtedness of PCI Chemicals Canada Company evidenced by the Borrower or New Tranche B Notes, Indebtedness of any Restricted Subsidiary consisting guarantor in respect of Qualified Trust Indebtednessthe guaranties of the New Tranche B Notes and Indebtedness in respect of all other Transaction Documents and all other obligations incurred thereunder;
(kiii) Indebtedness of the Borrower and its Restricted any Indenture Obligor or Obligor Subsidiaries pursuant to the Senior Unsecured Notes, constituting Existing Indebtedness and any Refinancing extension, deferral, renewal, refinancing or refunding thereof, without increasing the aggregate principal amount of such Indebtedness then outstanding and covered thereby;
(iv) Indebtedness of PCI and the Company in respect of and in accordance with the terms of, the Exit Facility; provided that, notwithstanding the terms of the Exit Facility, the aggregate principal amount of Indebtedness at any time outstanding under the Exit Facility shall not exceed $65,000,000;
(v) Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiaries, including Indebtedness in respect thereof of Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiary secured by Liens that is unsecured secure the payment of all or part of the purchase price of assets or property acquired or constructed in the ordinary course of business after the date hereof; provided, however, that the aggregate principal amount of such Capitalized Lease Obligations, including such Indebtedness in respect of Capitalized Lease Obligations of Indenture Obligors and all of their respective Obligors Subsidiaries, does not exceed $10,000,000 in the aggregate outstanding at any time;
(except that Refinancing vi) Indebtedness issued of PCI or the Company to refinance any of their respective Subsidiaries or of any such Subsidiary to PCI, the Senior Unsecured Notes may be secured by the proceeds of Company or another such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, Subsidiary (but only while so long as such proceeds are Indebtedness is held in escrowby PCI, the Company or such Subsidiary);
(lvii) additional Indebtedness of the Borrower Indebtedness[, not secured by or its Restricted Subsidiaries that is unsecured (except that Indebtedness subject to any Lien,] under Hedging Obligations incurred in the form ordinary course of senior unsecured notes PCI's or the Company's business; provided, however, [that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may if such Indebtedness shall be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later or subject to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarterLiens permitted under Section 1012, the Borrower and its Restricted Subsidiaries would have been aggregate Indebtedness at anyone time outstanding in compliance with respect of all the financial covenants set forth in Article IX, and the Borrower such Hedging Obligations which shall have delivered to the Administrative Agent a certificate of its chief financial officer be secured by or treasurer subject to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party Liens [cash] shall not exceed $250,000,000[o], (ii) and provided, further,] that in the case of foreign currency exchange or similar agreements which relate to other Indebtedness, such agreements do not increase the Indebtedness matures at least six (6) months after of any Indenture Obligor or its Obligor Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates, and in the later to occur case of interest rate protection agreements, only if the notional principal amount of such interest rate protection agreement does not exceed the principal amount of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of Indebtedness to which such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)interest rate protection agreement relates;
(nviii) Indebtedness incurred Indebtedness, not secured by or subject to any Lien [(except as shall, in the Borrower or any ordinary course of its Restricted Subsidiariesbusiness, including Indebtedness represented be backed by letters of credit for the account of the Borrower or any Restricted Subsidiarycash)], in respect of workers’ compensation claims, self-insurance obligations, performance, proposalcompletion, completionguaranty, surety and similar bonds and completion guarantees bonds, banker's acceptances, bills of exchange or letters of credit provided or endorsed by PCI, the Borrower Company or its Restricted any of their respective Subsidiaries in the ordinary course of business; ;
(ix) Indebtedness, not secured by or subject to any Lien, in respect of (i) any guaranty (not otherwise referred to above) provided that by PCI, the underlying obligation to perform is that Company or any of the Borrower or one of its Restricted their respective Subsidiaries and not that in respect of any other Person and, Indebtedness permitted to be incurred hereunder; provided, furtherhowever, that if such underlying obligation Indebtedness guaranteed is not subordinated in respect right of borrowed money;
(o) payment to any other Indebtedness of the Borrower consisting of customary indemnificationIndenture Obligor thereof, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted then such guaranty shall be subordinated to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) guarantor to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocatedsame extent, (ii) shall not be required to allocate the amount indemnities in favor of such Indebtedness to more than one of such clausesPersons issuing title insurance policies, (iii) may elect indemnifications in its sole discretion to apportion such Indebtedness between the Transaction Documents and in any agreements contemplated thereunder or among any two or more of such clauses, thereby and (iv) may reallocate indemnities in the Organizational Documents of PCI and its Subsidiaries;
(x) Indebtedness subject to Liens permitted by Section 1012 (including Attributable Indebtedness in respect of Sale and Leaseback Transactions);
(xi) Indebtedness incurred in respect of New Other Secured Notes and Claims; or
(xii) any refinancing, refunding, deferral, renewal or reclassify all extension (each, a "Refinancing") of any Indebtedness of any Obligor or any part Obligor Subsidiary permitted by subsections (ii), (iv), (x) and (xii) (the "Refinancing Indebtedness"); provided, however, that (a) such Refinancing Indebtedness does not exceed the aggregate principal amount of the Indebtedness so refinanced, plus the amount of any premium required to be paid in connection with such Refinancing in accordance with the terms of such Indebtedness between or among the amount of any one premium reasonably determined by such Obligor as necessary to accomplish such Refinancing, plus the amount of reasonable and customary out-of-pocket fees and expenses payable in connection therewith, (b) the Refinancing Indebtedness does not provide for any mandatory redemption, amortization or sinking fund requirement in an amount greater than or at a time prior to the amounts and times specified in the Indebtedness being refinanced, refunded, deferred, renewed or extended and (c) if the Indebtedness being refinanced, refunded, deferred, renewed or extended is subordinated to the Indebtedness of the Obligor or Obligor Subsidiaries under the Securities, the Refinancing Indebtedness incurred to refinance, refund, defer, renew or extend such Indebtedness is subordinated in right of payment to the Obligations on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being so refinanced, refunded, deferred, renewed or extended; provided, however, that no Indebtedness permitted to be incurred pursuant to this Section 1008 (except for the Exit Facility or any refinancing thereof permitted under this Indenture) shall contain any terms that are more restrictive on or to the obligor of such clauses at any time and from time to timeIndebtedness than those set forth in this Indenture, provided that, at the time such reallocation whether taken individually or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedas a whole.
Appears in 1 contract
Sources: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Debt except:
(ai) Debt incurred pursuant to the Obligations Loan Documents (excluding Hedging Obligations Hedge Agreements permitted pursuant to Section 10.1(bthe following clause (ii))) and First Lien Loan Documents in an amount not to exceed the Cap Amount;
(bii) Indebtedness Debt incurred in connection with a Hedging Agreement Hedge Agreements (A) with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative AgentAgent or (B) required pursuant to Section 5.01(p); provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(ciii) Indebtedness Debt existing on the Closing Date and not otherwise permitted under this Section and listed on Schedule 10.14.01(v), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof; and listed on Schedule 4.01(v) and any Refinancing Indebtedness refinancings, refundings, renewals or extensions thereof; provided that (A) the principal amount of such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (B) any refinancing, refunding, renewal or extension of any Subordinated Debt shall be (1) on subordination terms at least as favorable to the Lenders, (2) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Debt being refinanced, refunded, renewed or extended and (3) in an amount not more than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(div) Indebtedness Debt of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesCapitalized Leases in an aggregate amount not to exceed $12,000,000 on any date of determination;
(ev) purchase money Indebtedness Debt of the Borrower and its Restricted Subsidiaries, and Subsidiaries in an aggregate amount not to exceed $12,000,000 on any Refinancing Indebtedness in respect thereofdate of determination;
(fvi) Indebtedness Debt of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness Debt was not incurred in connection with or in contemplation of, of such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofassets, in an aggregate amount not to exceed $100,000,000 in the aggregate at any time outstandingoutstanding $30,000,000;
(gvii) Guaranty Obligations Guaranties in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(hviii) Guaranty Obligations Guaranties with respect to Indebtedness Debt permitted pursuant to clauses (i) through (v) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtednesssubsection;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(lix) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date Subordinated Debt so long as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to such Subordinated Debt the incurrence of any such Indebtedness Leverage Ratio would be less than or equal to .25 below the applicable Leverage Ratio set forth in Section 5.04(a) calculated on a pro forma basis, as if such incurrence of Indebtedness had occurred basis on the first day date of the twelve month period ending on last quarter reported and the last day of Interest Coverage Ratio (as defined in the Borrower’s then most recently completed fiscal quarter, First Lien Credit Agreement) would be at least .25 greater than the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants applicable Interest Coverage Ratio set forth in Article IX, and Section 5.04(b) of the Borrower shall have delivered to First Lien Credit Agreement calculated on a pro forma basis on the Administrative Agent a certificate date of its chief financial officer or treasurer to such effect setting forth the last quarter reported; provided that in reasonable detail the computations necessary to determine such compliancecase of each issuance of Subordinated Debt, (iiiA) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing or would be caused by the issuance of such Subordinated Debt, and (ivB) the documentation governing Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness contains customary market termsSubordinated Debt;
(mx) additional secured Indebtedness Additional Debt not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent $12,000,000;
(10%xi) Debt incurred in the ordinary course of Consolidated Tangible Assets, determined, with business in respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as obligations of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant Borrower or any Subsidiary to clauses pay the deferred purchase price of goods or services or progress payments in connection with such goods and services that are paid by the Borrower or such Subsidiary in accordance with the applicable payment terms; and
(axii) and (b), respectively, Debt of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse any Loan Party owed to any Credit other Loan Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than not to exceed $150,000,000 and 60,000,000; provided that no agreement or instrument with respect to Debt permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower shall provide notice to the Administrative Agent thereof pursuant make any payment to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted SubsidiariesSubsidiaries (in the form of dividends, including Indebtedness represented by letters of credit intercompany advances or otherwise) for the account purpose of enabling the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by to pay the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Landrys Restaurants Inc)
Limitations on Indebtedness. CreateDirectly or indirectly create, incur, assume or suffer otherwise become directly or indirectly liable with respect to exist any Indebtedness exceptexcept for the following:
(a) the Obligations (excluding Hedging Obligations permitted Indebtedness incurred by any Loan Party or Escrow Subsidiary pursuant to Section 10.1(b));the Term Loan Facility and Indebtedness incurred by any Loan Party otherwise than pursuant to the Term Loan Facility (including pursuant to any Additional Obligations Documents, any Permitted Debt Exchange or any Rollover Indebtedness but not pursuant to the Loan Documents) in an aggregate principal amount at any time outstanding not to exceed (A) $325,000,000 plus (B) the Maximum Incremental Facilities Amount.
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred in connection with a Hedging pursuant to this Agreement with a counterparty and upon terms and conditions the other Loan Documents (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentIncremental Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Unsecured Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Parent Borrower or any of its Restricted Subsidiaries;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, including and disclosed on Schedule 8.13(d), together with any renewal, extension, refinancing or refunding pursuant to clause (i) below;
(e) Secured Indebtedness represented by letters of credit for the account of the Parent Borrower or any of its Restricted Subsidiary, Subsidiaries in an aggregate principal amount at any time outstanding not to exceed the greater of (x) $150,000,000 and (y) 6.25% of Consolidated Total Assets and only so long as the Liens securing such Indebtedness are incurred under and in compliance with Subsection 8.14(p);
(f) Guarantee Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of workers’ compensation claimsIndebtedness of a Loan Party that is permitted hereunder; provided that Guarantee Obligations in respect of Indebtedness permitted pursuant to clauses (a), self-insurance obligations(c) and (m) shall be permitted only to the extent that such Guarantee Obligations are incurred by Guarantors (other than, performancein the case of clause (m), proposal, completion, surety and similar bonds and completion guarantees provided Guarantee Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) the Parent Borrower or any of its Restricted Subsidiaries in respect of lease obligations of Non-Loan Parties (to the extent such lease obligations constitute Indebtedness);
(iii) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(iv) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person; provided that the aggregate amount at any time outstanding of such Guarantee Obligations incurred pursuant to this clause (iv), when aggregated with the amount of all other Guarantee Obligations incurred and outstanding pursuant to this clause (iv) and all Indebtedness incurred and outstanding pursuant to clause (w) of this Subsection 8.13, shall not exceed the greater of (x) $195,000,000 and (y) 11.50% of Consolidated Total Assets at the time of such Guarantee Obligations being incurred;
(v) the Parent Borrower or any of its Restricted Subsidiaries in connection with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(vi) the Parent Borrower or any of its Restricted Subsidiaries consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business; provided that ;
(vii) the underlying obligation to perform is that of the Parent Borrower or one any of its Restricted Subsidiaries in respect of Investments expressly permitted pursuant to clause (c), (j), (l), (m) or (v) of the definition of “Permitted Investments”;
(viii) the Parent Borrower or any of its Restricted Subsidiaries in respect of (x) Management Guarantees and not that (y) third-party loans and advances to officers or employees of any Parent Entity or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clause (l) or (m) of the definition of “Permitted Investments”;
(ix) the Parent Borrower or any of its Restricted Subsidiaries in respect of Reimbursement Obligations in respect of Letters of Credit or with respect to reimbursement obligations in respect of any other Person and, provided, further, that such underlying obligation is not letters of credit permitted under this Agreement;
(x) the Parent Borrower or any of its Restricted Subsidiaries in respect of borrowed money;
(o) Indebtedness performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of the Borrower consisting of customary indemnificationcredit, deferred purchase price adjustments bankers’ acceptances or similar instruments or obligations, in each caseall in, or relating to liabilities or obligations incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a checkin, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(qxi) to the extent constituting Indebtedness, liabilities Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness or other obligations of a Person in connection with property assessed clean energy financing a joint venture or similar financing relating arrangement in respect of which the aggregate outstanding amount of all such Indebtedness, together with the aggregate outstanding amount of Investments permitted pursuant to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy clause (PACEq) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clausesdefinition of “Permitted Investments”, does not exceed the Borrower greater of (x) $20,000,000 and (y) 0.85% of Consolidated Total Assets; provided, however, that if any Indebtedness referred to in clauses (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and through (iv) may reallocate above is subordinated in right of payment to the Obligations or reclassify all is secured by Liens that are senior or subordinate to any part of such Indebtedness between Liens securing the Collateral, then any corresponding Guarantee Obligations shall be subordinated and the Liens securing the corresponding Guarantee Obligations shall be senior or among any one or more of such clauses at any time and from time subordinate to time, provided that, at substantially the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.same extent;
Appears in 1 contract
Limitations on Indebtedness. CreateIt will not, nor will it permit any of the Subsidiaries to, contract, create, incur, assume or suffer permit to exist any Indebtedness Indebtedness, except:
(ai) Indebtedness (including the Obligations Incremental Term Loan) arising under this Agreement and the other Credit Documents;
(excluding Hedging Obligations permitted pursuant ii) Indebtedness of the Company and its Subsidiaries set forth on Schedule 5.2(f) (and renewals, refinancings and extensions thereof on terms and conditions no less favorable to Section 10.1(b)such Person than such existing Indebtedness; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder);
(biii) obligations of the Company and its Subsidiaries in respect of Hedging Agreements entered into in order to manage existing or anticipated interest rate or exchange rate risks and not for speculative purposes; provided, however, that in no event shall the entering into of such Hedging Agreements cause more than 60% of all Indebtedness incurred of the Company and its Subsidiaries to become, effectively, floating-rate Indebtedness.
(iv) obligations of the Company and its Subsidiaries in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory any Permitted Receivables Financing of up to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness $100,000,000 in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such PersonAttributed Principal Amount, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing obligations constitute Indebtedness;
(iv) intercompany Indebtedness owed owing by any a Credit Party to another Credit Party;
(jvi) in addition to the Indebtedness otherwise permitted by this Section 5.2(f), other purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower Company and its Restricted Subsidiaries pursuant to finance the Senior Unsecured Notespurchase of fixed assets, and any Refinancing Indebtedness in respect thereof provided that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds aggregate outstanding principal amount of such Indebtedness if such shall not exceed $25,000,000 at any time; and
(vii) other Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); hereafter incurred by the Company or any of its Subsidiaries provided that (iA) the loan documentation with respect to such Indebtedness matures at least six (6) months after shall not contain covenants or default provisions relating to the later to occur of Company or any Consolidated Subsidiary that are more restrictive than the Revolving covenants and default provisions contained in the Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such IndebtednessDocuments, (iiB) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower Company shall have delivered to the Administrative Agent a pro forma compliance certificate of its chief financial officer or treasurer demonstrating that, upon giving effect on a Pro Forma Basis to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect theretoto the concurrent retirement of any other Indebtedness of the Company or any of its Consolidated Subsidiaries, no Default or Event of Default shall exist or the Credit Parties would be continuing and (ivin compliance with the financial covenants set forth in Section 5.2(d) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended recent fiscal quarter for end with respect to which the Administrative Agent has received the financial statements have been furnished required to be delivered pursuant to clauses (aSection 5.1(a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (iC) the aggregate principal amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses 50,000,000 at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Sources: Credit Agreement (Hercules Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)thereof;
(l) additional unsecured Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)Subsidiaries; provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000250,000,000 minus the principal amount of term loans outstanding under the Existing TLB Credit Agreement, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such IndebtednessIndebtedness (which date, with respect to the term loans outstanding under the Existing TLB Credit Agreement, was April 17, 2023), (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 50,000,000 (other than with respect to the term loans issued pursuant to the Existing TLB Credit Agreement or any Refinancing Indebtedness in respect thereof) and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Sources: Credit Agreement (CoreCivic, Inc.)
Limitations on Indebtedness. CreateThe Loan Parties shall not, and shall not permit any of their Subsidiaries to, create, assume, incur, assume issue, guarantee or suffer otherwise become or remain obligated in respect of, or permit to exist be outstanding, any Indebtedness except:Indebtedness, except the following (the “Permitted Indebtedness”):
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Obligations;
(b) Subordinated Indebtedness incurred in connection an aggregate amount outstanding (together with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rateany Refinancing Debt in respect thereof) reasonably satisfactory at any time not in excess of $20,000,000; provided, that, in the event that such Subordinated Indebtedness is Permitted Affiliate Sub Debt, subject to the Administrative Agent; provided that any counterparty that is Intercreditor Agreement, 100% of the proceeds thereof are immediately applied by Holdings to make a Lender shall be deemed satisfactory to Specified Equity Contribution in the Administrative AgentBorrower Agent in accordance with Section 6.1(c);
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereofPermitted Purchase Money Debt;
(d) Indebtedness (other than the Obligations, Subordinated Indebtedness, Permitted Purchase Money Debt and Revolving Loan Obligations) set forth on Schedule 6.2 (other than the Obligations, Subordinated Indebtedness, Permitted Purchase Money Debt and Revolving Loan Obligations), but only to the extent outstanding on the Closing Date and not satisfied with proceeds of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesTerm Loans;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness that is in respect thereof;
(f) Indebtedness of existence when a Person existing at the time such Person became becomes a Restricted Subsidiary or assets were that is secured by an asset when acquired from such Personby a Loan Party or Subsidiary, to the extent as long as (i) such Indebtedness was not incurred in connection with or in contemplation of, of such Person becoming a Restricted Subsidiary or such acquisition, and (i) the acquisition aggregate amount of such assets and Indebtedness outstanding under this clause (e) (together with any Refinancing Indebtedness Debt in respect thereof, in an aggregate amount ) does not to exceed $100,000,000 1,000,000 in the aggregate at any time outstandingtime;
(f) Permitted Contingent Obligations;
(g) Guaranty Revolving Loan Obligations in favor of so long as such obligations do not exceed the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant Revolving Loan Maximum Amount, subject to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements limitations set forth in the last sentence Intercreditor Agreement; provided, that, the maximum aggregate amount of Revolving Loan Obligations specified in clause (a)(i) of the definition of “Senior Unsecured NotesRevolving Loan Maximum Amount” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower Intercreditor Agreement of any Person other than the Loan Parties that shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(mclause (g) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)10,000,000;
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. Create(a) The Borrower will not, incurand will not permit its Subsidiaries to, assume and the Company will not, and will not permit its Subsidiaries to, create, issue, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(i) Indebtedness evidenced by the Notes;
(ii) unsecured Indebtedness incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) so long as no principal of such Indebtedness is scheduled to mature prior to the stated maturity of the Notes;
(iii) (a) secured or unsecured purchase money Indebtedness (including Capital Leases) (such Indebtedness being referred to herein as “Permitted Purchase Money Indebtedness”) incurred by the Obligations Company or any Domestic Subsidiary of the Company other than the Borrower (excluding Hedging Obligations or any of the Borrower’s Subsidiaries) and (b) secured Indebtedness (such Indebtedness being referred to herein as “Permitted Receivables/Inventory Indebtedness”) incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s direct Subsidiaries) secured by Accounts and Inventory, if all such Permitted Purchase Money Indebtedness and Permitted Receivables/Inventory Indebtedness does not exceed, in the aggregate at any time outstanding, the greater of (1) $5,000,000 or (2) 8% of Consolidated Net Tangible Assets as determined at such time using the consolidated balance sheet of the Company and its Subsidiaries for the most recently completed fiscal quarter of the Company;
(iv) secured Indebtedness (hereinafter referred to as the “Permitted Other Secured Indebtedness”) created, issued, assumed, guaranteed or otherwise incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) so long as no principal of such Indebtedness is scheduled to mature prior to the stated maturity of the Notes; provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, the ratio of (i) Consolidated Secured Indebtedness at such time to (ii) Consolidated EBITDA as measured for the then trailing six most recently completed fiscal quarters of the Company on an annualized basis or the four most recently completed fiscal quarters of the Company if the date of determination is after the third anniversary of the Closing, shall not be in excess of 3.0 to 1.0;
(v) Indebtedness (hereinafter referred to as the “Permitted Acquisition Indebtedness”) created, issued, assumed, guaranteed or otherwise incurred by the Company or any Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) used to finance (or assumed in connection with) the acquisition of a pharmaceutical or biotechnology product (including by way of the acquisition of stock or other similar ownership interests of the Person owning the target product); provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, the aggregate outstanding principal amount of such Indebtedness permitted pursuant by this clause (v) shall not exceed three times the lower of:
(1) the annualized EBITDA of the Person or product being acquired as measured for the then most recent 12 months ended; or
(2) the lowest projected annualized EBITDA for the Person or product being acquired, as the case may be, for any of the three years following the acquisition as determined by the Company in good faith on a pro forma basis and presented to Section 10.1(b));the Company’s board of directors in connection with the approval of such acquisition; and
(vi) Indebtedness represented by currency swaps or letters of credit entered into or issued, as the case may be, in the ordinary course of business of a Credit Party.
(b) The renewal, extension, increase or refunding of any Indebtedness originally permitted to be issued, incurred or outstanding pursuant to Section 10.1(a) shall constitute the issuance of additional Indebtedness which is, in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory turn, subject to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to limitations of the Administrative Agent;applicable provisions of this Section 10.1.
(c) Any Person that becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.1 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Indebtedness of such Person existing on immediately after it becomes a Subsidiary which Indebtedness, in turn, shall be subject to the Closing Date and listed on Schedule 10.1limitations of this Section 10.1 including, and for the avoidance of doubt, any Refinancing Indebtedness in respect thereof;exceptions set forth herein.
(d) Indebtedness Each Credit Party, the Collateral Agent and each Purchaser acknowledges and agrees that, notwithstanding the incurrence or assumption of any of the Borrower and its Restricted Subsidiaries Indebtedness permitted to be incurred in connection with Finance Leases;
(e) purchase money Indebtedness of or assumed pursuant to Section 10.1(a), the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, Liens granted to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Collateral Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee holders of Refinancing Indebtedness shall only be permitted if it meets Notes as collateral security for the requirements payment of the definition of Refinancing Indebtedness;
Obligations (iincluding, without limitation, the Liens on the Collateral provided for in Section 3 hereof) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of shall remain in place as valid and enforceable Liens; provided, however, that the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of Purchasers and the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured NotesCollateral Agent hereby agree that, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time case of the incurrence or assumption of such any Permitted Purchase Money Indebtedness, (ii) after giving effect to any Permitted Receivables/Inventory Indebtedness or any Permitted Acquisition Indebtedness, if requested by the incurrence of any Company, the Collateral Agent shall agree, in a writing that is in form and substance reasonably acceptable thereto, with the applicable creditor or creditors holding such Permitted Purchase Money Indebtedness, such Permitted Receivables/Inventory Indebtedness on a pro forma basisor such Permitted Acquisition Indebtedness, as if such incurrence of Indebtedness had occurred the case may be, to subordinate any Liens which the Collateral Agent has or holds on the first day assets being acquired or financed in favor of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered Liens expressly permitted to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, be incurred under Sections 10.3 (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(ma)(i), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a10.3(a)(ii) and (b10.3(c), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedacquisition.
Appears in 1 contract
Sources: Senior Secured Note and Warrant Purchase Agreement (Jazz Pharmaceuticals Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist (a) The Borrower will not at any Indebtedness excepttime permit:
(ai) The aggregate unpaid principal amount of Senior Debt, on a consolidated basis, to exceed 400% of the sum of (A) Consolidated Adjusted Net Worth, (B) the Obligations aggregate unpaid principal amount of Junior Subordinated Debt, and (excluding Hedging Obligations permitted pursuant to Section 10.1(b))C) the aggregate unpaid principal amount of Senior Subordinated Debt;
(bii) Indebtedness incurred in connection with a Hedging Agreement with a counterparty The sum of (A) the aggregate unpaid principal amount of Senior Subordinated Debt, and upon terms and conditions (including interest rateB) reasonably satisfactory the aggregate unpaid principal amount of Junior Subordinated Debt to the Administrative Agentexceed 125% of Consolidated Adjusted Net Worth; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;or
(ciii) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;The aggregate unpaid principal amount of Junior Subordinated Debt to exceed 50% of Consolidated Adjusted Net Worth; or
(div) The aggregate amount of unused credit then available from the Banks under this Agreement or otherwise from banks and trust companies under firmly committed lines of credit from a lending group of not fewer than two lenders to be less than the sum of the (A) aggregate outstanding amount of its commercial paper and (B) payments of principal then scheduled to become due during the eight-month period then commencing on all Indebtedness for Borrowed Money of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;(excluding obligations under the Notes and this Agreement).
(eb) purchase money Indebtedness of the The Borrower and its Restricted Subsidiarieswill not permit, and any Refinancing Indebtedness in respect thereof;
(fi) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor on or before the Trigger Date, the ratio of the Administrative Agent Indebtedness for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness Borrowed Money of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and Consolidated Adjusted Net Worth to exceed 4.5 to 1 for any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)month; provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence ratio of Indebtedness had occurred on the first day for Borrowed Money of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IXto Consolidated Adjusted Net Worth may exceed 4.5 to 1 for no more than 4 months of any consecutive 12-month period so long as such ratio does not exceed 5.5 to 1 at any such time, and (ii) at any time after the Trigger Date, the ratio of Indebtedness for Borrowed Money of the Borrower and its Restricted Subsidiaries to Consolidated Adjusted Net Worth to exceed 5.5 to 1 for any month; provided that the ratio of Indebtedness for Borrowed Money of the Borrower and its Restricted Subsidiaries to Consolidated Adjusted Net Worth may exceed 5.5 to 1 for no more than 4 months of any consecutive 12-month period so long as such ratio does not exceed 6.5 to 1.
(c) The Borrower will not create, assume, or incur or otherwise become liable in respect of any Senior Subordinated Debt (other than the Senior Subordinated Notes) or Junior Subordinated Debt unless such Senior Subordinated Debt or Junior Subordinated Debt shall have a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Senior Subordinated Notes. For purposes of this Section 8.10, “Weighted Average Life to Maturity” of the principal amount of any Indebtedness of the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m)mean, as of the most recentlytime of any determination thereof, the number of years obtained by dividing the then Remaining Dollar-ended fiscal quarter for which financial statements have been furnished pursuant to clauses years of such Indebtedness by the then outstanding principal amount of such Indebtedness; and the “Remaining Dollar-years” of any Indebtedness means at any time the amount obtained by (a) multiplying the amount of each then remaining installment, sinking fund, serial maturity or other required principal payment, including payment at final maturity, by the number of years (calculated to the nearest one-twelfth) which will elapse between the time in question and the making of that payment and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur totaling all of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as products obtained in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(ha);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. CreateThe Company will not, incurand will not permit any Subsidiary to, create, assume or suffer to exist incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Ordinary Course Indebtedness;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to evidenced by the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentSeries 1999-A Notes;
(c) Indebtedness existing on outstanding under the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness Bank Credit Agreement in respect thereofan aggregate principal amount not exceeding $75,000,000;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leasesoutstanding pursuant to Permitted Accounts Receivable Financing Facilities;
(e) purchase money Indebtedness of outstanding under the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness 1992 Note Agreements in respect thereofan aggregate principal amount not exceeding $13,336,000;
(f) Indebtedness of a Person existing secured purchase money Indebtedness, including Capital Lease Obligations, originally incurred to acquire fixed assets providedthat at the time of such Person became a Restricted Subsidiary acquisition, the aggregate amount remaining unpaid on all such Indebtedness secured by Liens on such fixed assets, whether or assets were acquired from such Personnot assumed by the Company or its Subsidiaries, does not exceed an amount equal to the extent such Indebtedness was not incurred lesser of (i) 100%, in connection with the case of fixed assets which are personal property (including Capital Leases of fixed assets which are personal property), or (ii) 80%, in contemplation ofthe case of fixed assets which are real property, such Person becoming a Restricted Subsidiary of the lesser of the total purchase price or Fair Market Value at the acquisition time of such assets and any Refinancing Indebtedness acquisition as determined in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandinggood faith by the Board of Directors of the Company;
(g) Guaranty Obligations other Indebtedness for borrowed money; provided that (i) at the time of incurrence thereof, no Default or Event of Default shall exist, (ii) the aggregate outstanding principal amount of such Indebtedness plus (without duplication) the aggregate investment or claim held by purchasers of receivables in favor Foreign Receivable Financing Facilities shall not exceed 15% of Consolidated Net Worth at any time, (iii) the aggregate outstanding principal amount of all such Indebtedness of the Administrative Agent for Company or any Domestic Subsidiary (other than Indebtedness under Excluded Subsidiary Guaranties) shall not exceed 3% of Consolidated Net Worth at any time, and (iv) the benefit aggregate outstanding principal amount of all such Indebtedness of any Foreign Subsidiary plus (without duplication) the Secured Partiesaggregate investment or claim held by purchasers of receivables in Foreign Receivable Financing Facilities shall not exceed 15% of Consolidated Net Worth at any time;
(h) Guaranty Obligations Indebtedness under any Swap Contract with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee a term not greater than 184 days entered into in the ordinary course of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtednessbusiness for bona fide hedging purposes and not for speculation;
(i) Indebtedness owed of the Company which is not required to be redeemed, repurchased or otherwise prepaid by any Credit Party the Company (except on account of a default thereunder) on or prior to another Credit Party;March 1, 2010, and which Indebtedness is subordinated to other Indebtedness of the Company (including the Notes) on terms which are reasonably satisfactory to the holders of the Notes (such Indebtedness, "Subordinated Indebtedness"); and
(j) Indebtedness of refinancing or extending Indebtedness permitted above on terms and conditions no less favorable than the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of being refinanced; provided, however, that the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds principal amount of such Refinancing new Indebtedness if shall not exceed the outstanding principal amount of Indebtedness being refinanced immediately prior to such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries refinancing and that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, thereto no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur exits under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Sources: Note Purchase Agreement (K2 Inc)
Limitations on Indebtedness. Create, incur, assume or suffer permit to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness of the Borrower incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness of any Credit Party existing on the Closing Date and not otherwise permitted under this Section and listed on Schedule 10.17.1(u), and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing;
(d) Indebtedness of the Borrower any Credit Party and its Restricted Subsidiaries incurred in connection with Finance LeasesDG III pursuant to any Loan Document;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Unsecured Guaranty Obligations with respect to Indebtedness permitted pursuant to subsection (c) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(if) Unsecured Subordinated Indebtedness owed owing by any Credit Party to another Credit Party;
(jg) Indebtedness of DG III to MDVX pursuant to the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;MDVX Loan Agreement and the MDVX Note; and
(kh) Additional Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(lother than DG III) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes 1,500,000 at any time; provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of this Agreement, if an item of Indebtedness meets the criteria of more than one any Subsidiary of the above clauses, Borrower to make any payment to the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between its Subsidiaries (in the form of dividends, intercompany advances or among any one or more otherwise) for the purpose of such clauses at any time and from time enabling the Borrower to time, provided that, at pay the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.16.1(l), and any Refinancing Indebtedness the renewal, refinancing, refunding, extension and replacement (but not the increase in respect the aggregate principal amount) thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Capital Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofassets, in an aggregate amount not to exceed $100,000,000 in the aggregate at any time outstandingoutstanding $100,000,000, and any refinancings, refundings, renewals or extensions thereof; provided that, any (i) such refinancings, refundings, renewals or extensions do not increase the principal amount thereof, (ii) such refinancings, refundings, renewals or extensions are issued on terms and conditions reasonably satisfactory to the Administrative Agent (including a maturity date at least six (6) months after the Revolving Credit Maturity Date) and (iii) no Default or Event of Default exists and is continuing at the time of consummation thereof (both before and giving effect thereto);
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to each of the Senior Unsecured Notes, and and, in each case, any refinancings, refundings, renewals, extensions or exchanges thereof (“Refinancing Indebtedness in respect thereof Indebtedness”); provided that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of i) such Refinancing Indebtedness if is an original aggregate principal amount not greater than the aggregate principal amount of, and unpaid interest on, the Indebtedness being refinanced, refunded, renewed, extended or exchanged plus the amount of any premiums required to be paid thereon and fees and expense associated therewith, (ii) such Refinancing Indebtedness initially closes into escrowhas a later or equal final maturity and a larger or equal weighted average life than the Indebtedness being refinanced, but only while refunded, renewed, extended or exchanged, (iii) the covenants, events of default and any Guaranty Obligations in respect thereof, taken as a whole, shall not be materially less favorable to the Borrower and its Restricted Subsidiaries (as determined by the Administrative Agent in its reasonable discretion) than those contained in the Indebtedness being refinanced, refunded, renewed, extended or exchanged and (iv) at the time of, and after giving effect to, such proceeds are held in escrow)refinancing, refunding, renewal, extension or exchange, no Default or Event of Default shall have occurred and be continuing;
(l) additional unsecured Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)Subsidiaries; provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such IndebtednessDate, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount not more than $150,000,000 of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000Party, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)continuing;
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;; and
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. CreateDirectly or indirectly create, incur, assume or suffer otherwise become directly or indirectly liable with respect to exist any Indebtedness except:except for the following (collectively, “Permitted Indebtedness”):
(a) the Obligations (excluding Hedging Obligations permitted Indebtedness incurred by any Loan Party or Escrow Subsidiary pursuant to Section 10.1(b))the Term Loan Facility and Indebtedness incurred by any Loan Party or Escrow Subsidiary otherwise than pursuant to the Term Loan Facility (including pursuant to any Additional Obligations Documents, any Permitted Debt Exchange or any Rollover Indebtedness but not pursuant to the Loan Documents) in an aggregate principal amount at any time outstanding not to exceed (A) $1,500,000,000 plus (B) the Maximum Incremental Facilities Amount;
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred in connection with a Hedging pursuant to this Agreement with a counterparty and upon terms and conditions the other Loan Documents (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentIncremental Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Unsecured Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Parent Borrower or any of its Restricted Subsidiaries;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, including and disclosed on Schedule 8.13(d), together with any renewal, extension, refinancing or refunding pursuant to clause (i) below;
(e) Indebtedness represented by letters of credit for the account of the Parent Borrower or any of its Restricted Subsidiary, Subsidiaries secured pursuant to Subsection 8.14(p);
(f) Guarantee Obligations incurred by:
(xxix) the Parent Borrower or any of its Restricted Subsidiaries in respect of workers’ compensation claimsIndebtedness of a Loan Party that is permitted hereunder; provided that Guarantee Obligations in respect of Indebtedness permitted pursuant to clauses (a), self-insurance obligations(c) and (m) shall be permitted only to the extent that such Guarantee Obligations are incurred by Guarantors (other than, performancein the case of clause (m), proposal, completion, surety and similar bonds and completion guarantees provided Guarantee Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(xxx) the Parent Borrower or any of its Restricted Subsidiaries in respect of lease obligations of Non-Loan Parties (to the extent such lease obligations constitute Indebtedness);
(xxxi) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(xxxii) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person; provided that the aggregate amount at any time outstanding of such Guarantee Obligations incurred pursuant to this clause (iv), when aggregated with the amount of all other Guarantee Obligations incurred and outstanding pursuant to this clause (iv) and all Indebtedness incurred and outstanding pursuant to clause (w) of this Subsection 8.13, shall not exceed the greater of (x) $412,500,000 and (y) the amount equal to 25.00% of Consolidated Tangible Assets at the time of such Guarantee Obligations being incurred;
(xxxiii) the Parent Borrower or any of its Restricted Subsidiaries in connection with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(xxxiv) the Parent Borrower or any of its Restricted Subsidiaries consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business; provided that ;
(xxxv) the underlying obligation to perform is that of the Parent Borrower or one any of its Restricted Subsidiaries in respect of Investments expressly permitted pursuant to clause (c), (j), (l), (m) or (v) of the definition of “Permitted Investments”;
(xxxvi) the Parent Borrower or any of its Restricted Subsidiaries in respect of (x) Management Guarantees and not that (y) third-party loans and advances to officers or employees of any Parent Entity, IPO Vehicle or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clause (l) or (m) of the definition of “Permitted Investments”;
(xxxvii) the Parent Borrower or any of its Restricted Subsidiaries in respect of Reimbursement Obligations in respect of Letters of Credit or with respect to reimbursement obligations in respect of any other Person and, provided, further, that such underlying obligation is not letters or credit permitted under this Agreement;
(xxxviii) the Parent Borrower or any of its Restricted Subsidiaries in respect of borrowed money;
(o) Indebtedness performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of the Borrower consisting of customary indemnificationcredit, deferred purchase price adjustments bankers’ acceptances or similar instruments or obligations, in each caseall in, or relating to liabilities or obligations incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a checkin, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(qxxxix) to the extent constituting Indebtedness, liabilities Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness or other obligations of a Person in connection with property assessed clean energy financing a joint venture or similar financing relating arrangement in respect of which the aggregate outstanding amount of all such Indebtedness, together with the aggregate outstanding amount of Investments permitted pursuant to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy clause (PACEq) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clausesdefinition of “Permitted Investments”, does not exceed the Borrower greater of (x) $50,000,000 and (y) 3.50% of Consolidated Tangible Assets; provided, however, that if any Indebtedness referred to in clauses (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and through (iv) may reallocate above is subordinated in right of payment to the Obligations or reclassify all is secured by Liens that are senior or subordinate to any part of such Indebtedness between Liens securing the Collateral, then any corresponding Guarantee Obligations shall be subordinated and the Liens securing the corresponding Guarantee Obligations shall be senior or among any one or more of such clauses at any time and from time subordinate to time, provided that, at substantially the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.same extent;
Appears in 1 contract
Limitations on Indebtedness. CreateThe Borrower will not, and will not permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Indebtedness exceptother than the following:
(a) Indebtedness of the Obligations Credit Parties, including under the Credit Documents and, for the avoidance of doubt, any Indebtedness created under the Term Loan Supplement on the date hereof, and any Permitted Refinancing Indebtedness of the Credit Parties in respect of any Indebtedness incurred under this clause (excluding Hedging Obligations permitted pursuant a), in an aggregate outstanding principal amount not to Section 10.1(bexceed $1,500,000,000; but, in each case, that (A) such Indebtedness constitutes Permitted Pari Passu Secured Indebtedness, with the priority in the payment of Foreclosure Proceeds as set forth in the Collateral Trust Agreement (or a Pari Passu Intercreditor Agreement) and otherwise in compliance with the Term Loan Supplements of each Class of Loans then outstanding, and (B) with respect to any mandatory prepayments or mandatory offers to prepay such Indebtedness, such Indebtedness may participate in such mandatory prepayments or mandatory prepayment offers on a pro rata basis (or on a basis that is less than a pro rata basis, but not on a greater than pro rata basis) with any other Permitted Pari Passu Secured Indebtedness then outstanding; but, further, for the avoidance of doubt, (x) the amounts incurred in reliance on this clause (a) shall consist solely of the Term Loans provided hereunder (including the Term Loan Supplement of even date herewith) and (y) there shall be no other Indebtedness that is contractually equal in the right of payment of Foreclosure Proceeds to the Indebtedness incurred in reliance on this clause (a));.
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty Intercompany loans and upon terms and conditions (including interest rate) reasonably satisfactory advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentBorrower or its Restricted Subsidiaries;
(c) Indebtedness existing 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);
(d) subject to compliance with Section 9.5, Guarantee Obligations of (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries 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; but (A) if the Indebtedness being guaranteed under this Section 9.1(d) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Obligations or the Guarantee of the Obligations, as applicable, of the Borrower or such Restricted Subsidiary, 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 Indebtedness under clause (a) above or clause (g), clause (r) or clause (u) below 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;
(e) Guarantee Obligations incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees;
(f) (i) Indebtedness 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 and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness incurred in reliance on clause (f)(i); if, in each case, that any Liens securing such Indebtedness do not apply to any assets other than the assets referred to in clause (f)(i) or subject to the Capital Leases referred to in clause (f)(ii);
(g) Indebtedness (other than Indebtedness referred to in clauses (a), (r) and (u) of this Section) outstanding on the Initial Closing Date and listed on Schedule 10.19.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Permitted Refinancing Indebtedness issued or incurred to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of Refinance such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) The Borrower will not, and will not permit any of the Obligations (excluding Hedging Obligations permitted pursuant Restricted Subsidiaries to, Incur any Indebtedness or issue any Disqualified Stock, and the Borrower will not permit any of the Restricted Subsidiaries to Section 10.1(b));issue any shares of Preferred Stock.
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rateThe provisions of Section 7.11(a) reasonably satisfactory to will not prohibit the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;Incurrence of Permitted Debt.
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;[reserved].
(d) Indebtedness For purposes of determining compliance with any dollar-denominated restriction on the Incurrence of Indebtedness, the Dollar Equivalent of the Borrower and its Restricted Subsidiaries incurred principal amount of Indebtedness denominated in connection with Finance Leases;
(e) purchase money Indebtedness of another currency will be utilized, calculated based on the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness relevant currency exchange rate in respect thereof;
(f) Indebtedness of a Person existing at effect on the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent date such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofIncurred, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor the case of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing term Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower , or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notesfirst committed, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form case of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)Incurred under a revolving credit facility; provided that (i) if such Indebtedness matures is Incurred to refinance other Indebtedness denominated in a currency other than dollars, and such refinancing would cause the applicable dollar-denominated restriction to be exceeded if calculated at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as relevant currency exchange rate in effect at on the time of the incurrence date of such Indebtednessrefinancing, such dollar-denominated restriction will be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced and (ii) after giving effect to the incurrence Dollar Equivalent of the principal amount of any such Indebtedness outstanding on a pro forma basisthe Effective Date will be calculated based on the relevant currency exchange rate in effect on the Effective Date.
(e) Notwithstanding any other provision of this covenant, as if such incurrence the maximum amount of Indebtedness had occurred on that the first day Borrower or the applicable Restricted Subsidiary may Incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values. The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the twelve month period ending on Indebtedness, in the last day case of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance any Indebtedness issued with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market termsoriginal issue discount;
(m2) additional secured Indebtedness not otherwise permitted pursuant to this Section the principal amount of the Indebtedness, in an aggregate amount outstanding not to exceed an amount equal to ten percent the case of any other Indebtedness; and
(10%3) of Consolidated Tangible Assets, determined, with in respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of another Person secured by a Lien on the assets of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses specified Person, the lesser of:
(af) and the Fair Market Value of such assets at the date of determination;
(b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (ig) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;other Person; and
(p1) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in Hedging Obligations, the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one termination value of the above clauses, agreement or arrangement giving rise to such Hedging Obligations that would be payable by the Borrower (i) shall have the right to determine in its sole discretion the clause to which specified Person at such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifieddate.
Appears in 1 contract
Sources: Superpriority Secured Debtor in Possession Term Loan Agreement (Pacific Drilling S.A.)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations Indebtedness and obligations owing under Hedge Agreements permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred and obligations owing under Hedge Agreements entered into in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including order to manage existing or anticipated interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent, exchange rate or commodity price risks and not for speculative purposes;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and listed on Schedule 10.17.21, and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesCapital Leases and purchase money Indebtedness in an aggregate amount not to exceed $25,000,000 at any time outstanding;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such PersonPerson in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with with, or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $30,000,000 at any Refinancing time outstanding;
(f) Indebtedness in respect thereof, of Foreign Subsidiaries in an aggregate principal amount not to exceed $100,000,000 75,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (f) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(h) unsecured intercompany Indebtedness (i) Indebtedness owed by any Credit Party to another Credit Party;
, (jii) owed by any Foreign Subsidiary to another Foreign Subsidiary, (iii) owed by any Foreign Subsidiary to any Credit Party in an aggregate principal amount not to exceed $75,000,000 at any time outstanding (provided that any Indebtedness of the Borrower or owed by such Foreign Subsidiary to any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries Credit Party pursuant to this clause (iii) shall be evidenced by a demand note in form and substance reasonably satisfactory to the Senior Unsecured NotesAdministrative Agent) and (iv) owed by any Credit Party to any Foreign Subsidiary (provided, and any Refinancing that such Indebtedness shall be subordinated to the Obligations in respect thereof that is unsecured (except that Refinancing Indebtedness issued a manner reasonably satisfactory to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrowAdministrative Agent);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(j) Subordinated Indebtedness of the Borrower and its Subsidiaries; provided, that in the case of each incurrence of such Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the incurrence of such Subordinated Indebtedness, and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness;
(k) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(l) Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) of the Borrower or its Subsidiaries to purchase or redeem Capital Stock or options of the Borrower permitted pursuant to Section 11.6(d)(ii); provided that the aggregate principal amount of all such Indebtedness is extinguished within five shall not exceed $1,000,000 at any time outstanding;
(5m) Business Days Indebtedness of incurrenceFossil Partners, Fossil Group Europe GmbH, Fossil Asia Pacific Ltd. and/or any other Foreign Subsidiary under the Commercial Letter of Credit Facility not to exceed $100,000,000 in aggregate principal amount at any time outstanding, and Guaranty Obligations of the Borrower or any Subsidiary Guarantor with respect to such Indebtedness;
(n) additional unsecured Indebtedness not otherwise permitted pursuant to this Section in an aggregate principal amount not to exceed $5,000,000 at any time outstanding; and
(qo) unsecured Guaranty Obligations arising with respect to the extent constituting Indebtedness, liabilities customary indemnification obligations owed to purchasers in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedAsset Dispositions permitted by Section 11.5.
Appears in 1 contract
Sources: Credit Agreement (Fossil Inc)
Limitations on Indebtedness. CreateBorrower will not at any time create, incurincur or assume, assume or suffer to exist become or be liable (directly or indirectly) in respect of, any Indebtedness exceptIndebtedness, other than:
(a) the Obligations (excluding Hedging Obligations permitted incurred pursuant to Section 10.1(b))this Agreement;
(b) Indebtedness the obligations incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory relative to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to Senior Loan Documents or permitted by the Administrative AgentSenior Loan Documents;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereofGuarantee Obligations permitted under 0 hereof;
(d) Indebtedness current liabilities of Borrower incurred in the Borrower ordinary course of business not incurred through the borrowing of money, or the obtaining of credit except for credit on an open account basis customarily extended and its Restricted Subsidiaries incurred in fact extended in connection with Finance Leasesnormal purchases of goods and services;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereofof taxes, assessments, governmental charges or levies and claims for labor, workers' compensation, materials and supplies to the extent any of the foregoing shall not otherwise be payable in accordance herewith;
(f) Indebtedness in respect of a Person existing judgments or awards that have been in force for less than the applicable period for taking an appeal so long as execution is not levied thereunder or in respect of which Borrower shall at the time such Person became a Restricted Subsidiary in good faith be prosecuting an appeal or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets proceedings for review and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandingof which a stay of execution shall have been obtained pending such appeal or review;
(g) Guaranty Obligations endorsements for collection, deposit or negotiation and warranties of products or services, in favor each case incurred in the ordinary course of the Administrative Agent for the benefit of the Secured Partiesbusiness;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposalsurety, completionstatutory, surety and insurance, appeal or similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries obtained in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(qi.) except to the extent constituting Indebtednessprohibited by 0, liabilities in connection with property assessed clean energy financing Indebtedness of Borrower incurred to refinance or similar financing relating to energy efficiencyreplace Indebtedness of such Person permitted hereunder; provided, renewable energy and other eligible improvements, including, property assessed clean energy that the principal amount (PACEor committed principal amount) financing, in an aggregate of such refinancing Indebtedness shall not exceed the outstanding principal amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one (or committed principal amount) of the above clausesIndebtedness being refinanced, the Borrower (i) terms of such refinancing are not more onerous taken as a whole to such Person than the terms of the Indebtedness being refinanced, and Lender shall have consented to the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount incurrence of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedrefinancing Indebtedness.
Appears in 1 contract
Sources: Subordinated Loan and Security Agreement (Riviera Tool Co)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Debt except:
(ai) Debt incurred pursuant to the Obligations Loan Documents (excluding Hedging Obligations Hedge Agreements permitted pursuant to Section 10.1(b))the following clause) and First Lien Loan Documents in an amount not to exceed the Cap Amount;
(bii) Indebtedness Debt incurred in connection with a Hedging Agreement Hedge Agreements (A) with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative AgentAgent or (B) required pursuant to Section 5.01(p); provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(ciii) Indebtedness Debt existing on the Closing Second Amendment Effective Date and not otherwise permitted under this Section and listed on Schedule 4.01(v), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof; provided that the principal amount of such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(iv) Debt of the Borrower and its Subsidiaries incurred in connection with Capitalized Leases before the Second Amendment Effective Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof5.02(a)(iv) hereto;
(dv) Indebtedness purchase money Debt of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leasesbefore the Second Amendment Effective Date and listed on Schedule 5.02(a)(v) hereto;
(evi) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;[Reserved].
(fvii) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations Guaranties in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(hviii) Guaranty Obligations Guaranties with respect to Indebtedness Debt permitted pursuant to clauses (i) through (v) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtednesssubsection;
(iix) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness Affiliate Subordinated Debt issued for the sole purpose of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IXfunding, and the Borrower shall have delivered proceeds thereof are in fact promptly used to fund: (A) (I) the Administrative Agent a certificate transactions contemplated in Section 2.3 of its chief financial officer or treasurer the Second Amendment in an amount not to such effect setting forth in reasonable detail the computations necessary to determine such complianceexceed $30,000,000, (iiiII) at the time transactions contemplated in Section 2.4 of the incurrence Second Amendment in an amount equal to $20,000,000, (III) the transactions contemplated in Section 2.5 and Section 2.6 of such Indebtedness the Second Amendment and after giving effect theretoSection 2.7 of the Second Amendment (as defined in the First Lien Credit Agreement) and (IV) either (x), so long as no Default or Event of Default shall exist or have occurred and be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall would occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, from the Second Amendment Effective Date until December 31, 2010, the repayment of Advances at a discount of no Default less than the discount at which Advances were repaid pursuant to the repayment transactions contemplated in Section 2.3 of the Second Amendment, in each case subject to terms and conditions, including without limitation documentation, acceptable to the Administrative Agent, or Event (y) the repayment of Default Term Advances (as defined in the First Lien Credit Agreement) made pursuant to Section 2.06(i)(b)(G); provided that the Affiliate Subordinated Debt issued pursuant to this clause (A) shall exist not exceed $51,000,000 in the aggregate; (B) increases in the Borrower and its Subsidiaries’ Cage Cash or be continuing Operating Liquidity (as defined in the First Lien Credit Agreement) so long as (x) the issuance of the Affiliate Subordinated Debt is necessary for the Borrower and its Subsidiaries to achieve the minimum financial covenants set forth in Section 5.04(c) and 5.04(d) of the First Lien Credit Agreement at the time such Affiliate Subordinated Debt is issued, (y) the Borrower delivers to the Administrative Agent written notice, in form and substance reasonably acceptable to the Administrative Agent, describing the issuance of such Affiliate Subordinated Debt and the surrounding circumstances at least 5 Business Days prior to the issuance of such Affiliate Subordinated Debt and (ivz) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed aggregate amount of all Affiliate Subordinated Debt permitted pursuant to have occurred upon this clause (B) is equal to or less than $5,000,000 in the use aggregate; and (C) made for the sole purpose of paying amounts due under Section 2.08(f) of the $250,000,000 basket First Lien Credit Agreement so long as (x) the aggregate amount of all Affiliate Subordinated Debt permitted pursuant to this clause (iC) above is equal to or less than $3,000,000 in the aggregate and (y) the amount of all Affiliate Subordinated Debt permitted pursuant to this clause (C) in any twelve month period is equal to or less than $2,000,000 in the aggregate.
(x) [Reserved].
(xi) Debt incurred in the ordinary course of business and in amounts generally consistent with historical practice in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services that are paid by the Borrower or such Subsidiary in accordance with the applicable payment terms in an aggregate amount greater than not to exceed $150,000,000 and 5,000,000 at any time; and
(xii) Debt of any Loan Party owed to any other Loan Party in an aggregate amount not to exceed $60,000,000 at any time; provided, that no agreement or instrument with respect to Debt permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower shall provide notice to the Administrative Agent thereof pursuant make any payment to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted SubsidiariesSubsidiaries (in the form of dividends, including Indebtedness represented by letters of credit intercompany advances or otherwise) for the account purpose of enabling the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by to pay the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.”
Appears in 1 contract
Sources: Second Lien Credit Agreement (Landrys Restaurants Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(a) Indebtedness of the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Borrower or any Subsidiary Guarantor under this Agreement or the Subsidiary Guaranty;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty secured by Liens permitted under clauses (f)(ii), (h), (i), (k) and upon terms and conditions (including interest ratel) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentof Section 6.03;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness outstanding on the Effective Date which is of the Borrower type described in clause (i) below and its Restricted Subsidiaries, and any Refinancing Indebtedness which is described in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing IndebtednessSchedule 6.02;
(i) Indebtedness owed by of the Borrower and any Credit Party Subsidiary Guarantor pursuant to another Credit Party;
the Senior Note Indenture in an aggregate principal amount at any one time outstanding not to exceed (jA) $250,000,000 until the earlier of (x) the redemption of the Borrower's 10% Notes due 2004 and (y) June 30, 2004, and (B) $150,000,000 thereafter and (ii) Indebtedness of the Borrower or any Restricted Subsidiary consisting Guarantor issued in exchange for, or the net proceeds of Qualified Trust Indebtednesswhich are used to extend, refinance, renew, replace, defease, redeem or refund the Indebtedness referred to in clause (i) of this subsection (d), other than Indebtedness under the Senior Note Indenture relating to the Borrower's 10% Senior Notes due 2004, (A) the terms of which have been provided to the Lenders at least seven Business Days before the date of such renewal, refinancing, extension or modification, (B) which do not shorten the date for payment of interest thereon or shorten the maturity (or weighted average life) or increase the principal amount thereof and which, after giving effect thereto, contain terms and conditions (including, without limitation, covenants and events of default) that are no less favorable taken as a whole to the Lenders in any material respect than the terms and conditions thereof applicable before giving effect thereto, and (C) at any time that a Default or Event of Default shall not have occurred and be continuing or would result therefrom;
(ke) Indebtedness arising out of any Receivables Transfer Program conducted by MRI, Metris Funding Co. or Metris Asset Funding Co., and, with respect to MCI, recharacterization of any sale thereby as indebtedness in connection with any such transfer of assets or receivables pursuant to a Receivables Transfer Program conducted by MRI, Metris Funding Co. or Metris Asset Funding Co.
(f) Indebtedness in respect of loans and advances permitted by Section 6.06(d) (for the avoidance of doubt, the exception in this clause shall only be permitted so long as no Default has occurred or is continuing);
(g) Indebtedness in respect of deposits held by any Depositary Institution;
(h) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant maturing on or after the date that is 91 days after the Maturity Date in an amount not to the Senior Unsecured Notes, exceed $50,000,000 and any Refinancing other unsecured Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may Borrower and its Subsidiaries maturing at any time but not to exceed $5,000,000 (for the avoidance of doubt, the exceptions in this clause shall only be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrowpermitted so long as no Default has occurred or is continuing);; and
(li) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured any Subsidiary (except that Indebtedness which in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” each case may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h6.03(b);
) that is either (nx) Indebtedness incurred by to finance the Borrower acquisition, construction or improvement of any of its Restricted Subsidiariesfixed or capital assets, including Capital Lease Obligations and any Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business such assets or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring secured by a bank Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or other financial institution of a check, draft result in an earlier maturity date or similar instrument decreased weighted average life thereof (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished incurred prior to or within five 180 days after such acquisition or the completion of such construction or improvement); provided, however, that the aggregate principal amount of all Indebtedness incurred pursuant to this clause (5i)(x) Business Days of incurrence; and
shall not exceed $10,000,000, or (qy) to the extent constituting Indebtedness, liabilities assumed in connection with property assessed clean energy financing the merger, consolidation or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For acquisition of a Person or substantially all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, assets existing at the time such reallocation Person is merged into or reclassificationconsolidated with the Borrower or any Subsidiary or at the time of acquisition thereof, as the case may be, by the Borrower or a Subsidiary (provided that such Indebtedness meets was in existence prior to the requirements contemplation of such merger, consolidation or acquisition); provided, however, that the aggregate principal amount of all Indebtedness incurred pursuant to this clause to which reallocated (i)(y) shall not exceed $5,000,000 (for the avoidance of doubt, the exceptions in this clause shall only be permitted so long as no Default has occurred or reclassifiedis continuing).
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Metris Companies Inc)
Limitations on Indebtedness. CreateDirectly or indirectly create, incur, assume or suffer otherwise become directly or indirectly liable with respect to exist any Indebtedness except:except for the following (collectively, “Permitted Indebtedness”):
(a) the Obligations (excluding Hedging Obligations permitted Indebtedness incurred by any Loan Party or Escrow Subsidiary pursuant to Section 10.1(b))the Term Loan Facility and Indebtedness incurred by any Loan Party or Escrow Subsidiary otherwise than pursuant to the Term Loan Facility (including pursuant to any Additional Obligations Documents, any Permitted Debt Exchange or any Rollover Indebtedness but not pursuant to the Loan Documents) in an aggregate principal amount at any time outstanding not to exceed (A) $1,500,000,000 plus (B) the Maximum Incremental Facilities Amount;
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred in connection with a Hedging pursuant to this Agreement with a counterparty and upon terms and conditions the other Loan Documents (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentIncremental Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Unsecured Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Parent Borrower or any of its Restricted Subsidiaries;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, including and disclosed on Schedule 8.13(d), together with any renewal, extension, refinancing or refunding pursuant to clause (i) below;
(e) Indebtedness represented by letters of credit for the account of the Parent Borrower or any of its Restricted Subsidiary, Subsidiaries secured pursuant to Subsection 8.14(p);
(f) Guarantee Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of workers’ compensation claimsIndebtedness of a Loan Party that is permitted hereunder; provided that Guarantee Obligations in respect of Indebtedness permitted pursuant to clauses (a), self-insurance obligations(c) and (m) shall be permitted only to the extent that such Guarantee Obligations are incurred by Guarantors (other than, performancein the case of clause (m), proposal, completion, surety and similar bonds and completion guarantees provided Guarantee Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) the Parent Borrower or any of its Restricted Subsidiaries in respect of lease obligations of Non-Loan Parties (to the extent such lease obligations constitute Indebtedness);
(iii) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(iv) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person; provided that the aggregate amount at any time outstanding of such Guarantee Obligations incurred pursuant to this clause (iv), when aggregated with the amount of all other Guarantee Obligations incurred and outstanding pursuant to this clause (iv) and all Indebtedness incurred and outstanding pursuant to clause (w) of this Subsection 8.13, shall not exceed the greater of (x) $412,500,000 and (y) the amount equal to 25.00% of Consolidated Tangible Assets at the time of such Guarantee Obligations being incurred;
(v) the Parent Borrower or any of its Restricted Subsidiaries in connection with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(vi) the Parent Borrower or any of its Restricted Subsidiaries consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business; provided that ;
(vii) the underlying obligation to perform is that of the Parent Borrower or one any of its Restricted Subsidiaries in respect of Investments expressly permitted pursuant to clause (c), (j), (l), (m) or (v) of the definition of “Permitted Investments”;
(viii) the Parent Borrower or any of its Restricted Subsidiaries in respect of (x) Management Guarantees and not that (y) third-party loans and advances to officers or employees of any Parent Entity, IPO Vehicle or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clause (l) or (m) of the definition of “Permitted Investments”;
(ix) the Parent Borrower or any of its Restricted Subsidiaries in respect of Reimbursement Obligations in respect of Letters of Credit or with respect to reimbursement obligations in respect of any other Person and, provided, further, that such underlying obligation is not letters or credit permitted under this Agreement;
(x) the Parent Borrower or any of its Restricted Subsidiaries in respect of borrowed moneyperformance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of credit, bankers’ acceptances or similar instruments or obligations, all in, or relating to liabilities or obligations incurred in, the ordinary course of business; and
(xi) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness or other obligations of a Person in connection with a joint venture or similar arrangement in respect of which the aggregate outstanding amount of all such Indebtedness, together with the aggregate outstanding amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments”, does not exceed the greater of (x) $50,000,000 and (y) 3.50% of Consolidated Tangible Assets; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guarantee Obligations shall be subordinated and the Liens securing the corresponding Guarantee Obligations shall be senior or subordinate to substantially the same extent;
(g) Purchase Money Obligations, Financing Lease Obligations and other Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets;
(h) Indebtedness of any Foreign Subsidiary in an aggregate principal amount at any time outstanding not exceeding an amount equal to the sum of (x) the greater of $272,500,000 and 16.50% of Consolidated Tangible Assets and (y) an amount equal to (A) the Foreign Borrowing Base plus (B) in the event of any refinancing of any Indebtedness incurred under this clause (y), the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with such refinancing;
(i) renewals, extensions, refinancings and refundings of Indebtedness (in whole or in part) permitted by:
(i) clause (d) or (g) above or this clause (i)(i) provided, however, that (A) any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount (or accreted value, if applicable) of such Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees, underwriting discounts and other costs and expenses incurred in connection with such refinanced Indebtedness) and (B) such Indebtedness has a weighted average life to maturity no shorter than the remaining weighted average life to maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a) or (m) hereof or this clause (i)(ii); provided, however, that (A) any such renewal, extension, refinancing or refunding is in an aggregate principal amount (or, if issued with original issue discount, the accreted value) not greater than the principal amount (or accreted value, if applicable) of such Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees, underwriting discounts and other costs and expenses, incurred in connection with such refinanced Indebtedness), (B) with respect to Indebtedness originally incurred under clause (a) or (m), such Indebtedness has (x) a Stated Maturity date that is (i) at least 91 days after the Termination Date or (ii) in respect of Indebtedness with a Stated Maturity earlier than 91 days after the Termination Date, not earlier than the Stated Maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) only with respect to Restricted Indebtedness, a weighted average life to maturity, at the time of issuance or incurrence, of not less than the remaining weighted average life to maturity of the Indebtedness that is renewed, extended, refinanced or refunded (provided that compliance with this restriction shall be determined ignoring the effect of any payment of customary upfront fees or any permanent prepayment of such Indebtedness being refinanced, in each case based on market conditions at the time of any such refinancing), (C) if secured by any Collateral, such Indebtedness shall be subject to the terms of the ABL/Term Loan Intercreditor Agreement, a Junior Lien Intercreditor Agreement, or any Other Intercreditor Agreement, (D) to the extent that the Indebtedness to be renewed, extended, refinanced or refunded is unsecured and, at the time of such renewal, extension, refinancing or refunding, such Indebtedness could not be incurred under Subsection 8.13(a)(B), then such renewed, extended, refinanced or refunded Indebtedness may not be secured by any Collateral and (E) such renewed, extended, refinanced or refunded Indebtedness shall not include Indebtedness of a Restricted Subsidiary that is not a Loan Party that refinances Indebtedness of a Loan Party that could not have been initially incurred by such Restricted Subsidiary pursuant to this Subsection 8.13;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to any Holding Company or the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) Indebtedness incurred under any agreement pursuant to which a Person provides cash management services or similar financial accommodations to the Parent Borrower or any of its Restricted Subsidiaries (including any Cash Management Arrangements);
(l) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Plumb Acquisition Agreement;
(m) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as (i) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 recomputed as of the last day of the most recently ended Fiscal Quarter of the Parent Borrower for which financial statements are available, whether or not compliance with Subsection 8.1 is otherwise required at such time (it being understood that, as a condition precedent to the effectiveness of any such incurrence or assumption, the Borrower Representative shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (ii) before and after giving effect thereto, no Specified Default or Event of Default known to the Borrower Representative has occurred and is continuing, and (iii) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity or amortization rate greater than 1.0% per annum prior to the date that is 91 days after the Termination Date (other than (x) mandatory prepayments with proceeds of and exchanges for refinancing Indebtedness in respect thereof permitted hereunder or (y) an earlier maturity date and/or higher amortization rate for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or an amortization rate greater than 1.0% per annum prior to the date that is 91 days after the Termination Date and other mandatory prepayments with proceeds of and exchanges for refinancing Indebtedness in respect thereof permitted hereunder) and does not provide for redemption or repayment requirements from asset sales, casualty or condemnation events or excess cash flow on terms more favorable than those under the Term Loan Credit Agreement (other than, in the case of any customary bridge financing, prepayments of such bridge financing from the issuance of equity or other indebtedness permitted hereunder which meets the requirements of this Subsection 8.13(m)); it being understood that, in the event that any such Indebtedness incurred under this Subsection 8.13(m) is incurred in good faith to finance the purchase price of any such acquisition in advance of the closing of such acquisition, and such closing shall thereafter not occur and such Indebtedness (or an equal principal amount of other Indebtedness) is redeemed, repaid or otherwise retired promptly after the Borrower Representative determines that such transaction has been abandoned, such Indebtedness shall be deemed to comply with this Subsection 8.13(m);
(n) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(o) Indebtedness (A) arising from the honoring of a check, draft or similar instrument against insufficient funds in the Borrower ordinary course of business or (B) consisting of customary indemnificationguarantees, deferred indemnities, obligations in respect of earn-outs or other purchase price adjustments adjustments, or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business business, assets or assets permitted to be acquired hereunderPerson;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of Financing Leases which have been funded solely by Investments of the Parent Borrower and its Restricted Subsidiaries permitted under clause (r) of the definition of “Permitted Investments”;
(q) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries arising in connection with industrial development or revenue bonds or similar obligations secured by property or assets leased to and operated by the Parent Borrower or such Restricted Subsidiary arising from that were issued in connection with the honoring financing or refinancing of such property or assets, provided, that the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed the greater of (x) $35,000,000 and (y) 2.50% of Consolidated Tangible Assets;
(r) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by a bank or other financial institution of a checkbonds, draft debentures, notes or similar instrument instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(except s) accretion of the principal amount of Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries otherwise permitted hereunder issued at any original issue discount;
(t) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Agreements, Hedging Agreements and other Permitted Hedging Arrangements;
(u) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(v) Indebtedness in respect of any letters of credit issued in favor of any Issuing Lender or the Swingline Lender to support any Defaulting Lender’s participation in Letters of Credit or Swingline Loans as provided for in Subsection 3.4, in each case to the extent not exceeding the maximum amount of daylight overdraftssuch participations;
(w) drawn against insufficient funds other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries; provided that the aggregate amount outstanding at any time of such Indebtedness incurred or assumed pursuant to this clause (w), when aggregated with all other Indebtedness incurred or assumed and outstanding pursuant to this clause (w) and all Guarantee Obligations incurred and outstanding pursuant to Subsection 8.13(f)(iv), shall not exceed the greater of (i) $412,500,000 and (ii) the amount equal to 25.00% of Consolidated Tangible Assets at the time of incurrence of such Indebtedness;
(x) Indebtedness in respect of performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations, letters of credit, bankers’ acceptances or similar instruments or obligations, and take-or-pay obligations under supply arrangements, all provided in, or relating to liabilities or obligations incurred in, the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.including those issue
Appears in 1 contract
Limitations on Indebtedness. CreateNeither Operating Borrower nor any Project Borrower shall assume, create, incur, assume or suffer permit to exist or guaranty any Indebtedness or contingent obligations, except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Obligations;
(b) Indebtedness incurred trade obligations and normal accruals in connection with the ordinary course of business not yet due and payable (or being contested in a Hedging Agreement with a counterparty and upon terms and conditions manner provided in paragraph (including interest rateb)(i) reasonably satisfactory to through (iii) of the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to definition of “Permitted Exceptions” or as otherwise permitted in the Administrative AgentLoan Documents);
(c) the TCF Indebtedness existing and the Indebtedness outstanding on the Closing Date date hereof and listed on Schedule 10.17.10 and any refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any Refinancing Indebtedness in respect thereofexisting commitments unutilized thereunder;
(d) Indebtedness obligations (contingent or otherwise) of the any Project Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiariesexisting or arising under any Swap Contract, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six obligations are (6or were) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of entered into by such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries Person in the ordinary course of business; provided that business for the underlying purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to perform is that of make payments on outstanding transactions to the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not defaulting party;
(e) Indebtedness in respect of borrowed money;
(o) Indebtedness capital leases and purchase money obligations for fixed or capital assets; provided, however, that the aggregate amount of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that all such Indebtedness is extinguished within five (5) Business Days of incurrenceat any one time outstanding shall not exceed $1,000,000.00; and
(qf) to the extent constituting Indebtedness, liabilities Guaranties in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item respect of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedother performance obligations otherwise permitted hereunder.
Appears in 1 contract
Sources: Borrowing Base Revolving Line of Credit Agreement (Cole Credit Property Trust III, Inc.)
Limitations on Indebtedness. CreateThe Borrower will not, and will not permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness exceptother than the following:
(a) Indebtedness of the Obligations Credit Parties, including under the Credit Documents, and any Permitted Refinancing Indebtedness of the Credit Parties in respect of any Indebtedness incurred under this clause (excluding Hedging Obligations permitted pursuant a), in an aggregate outstanding principal amount not to Section 10.1(b))exceed the Maximum Aggregate Amount; provided, in each case, that (i) such Indebtedness constitutes Permitted Pari Passu Secured Indebtedness, with the priority in the payment of Foreclosure Proceeds as set forth in the Collateral Trust Agreement (or a Pari Passu Intercreditor Agreement) and otherwise in compliance with the Term Loan Supplements of each Class of Loans then outstanding, and (ii) with respect to any mandatory prepayments or mandatory offers to prepay such Indebtedness, such Indebtedness may participate in such mandatory prepayments or mandatory prepayment offers on a pro rata basis (or on a basis that is less than a pro rata basis, but not on a greater than pro rata basis) with any other Permitted Pari Passu Secured Indebtedness then outstanding;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty Intercompany loans and upon terms and conditions (including interest rate) reasonably satisfactory advances made by the Borrower to any Restricted Subsidiary or made by any Restricted Subsidiary to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentBorrower or its Restricted Subsidiaries;
(c) Indebtedness existing 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);
(d) subject to compliance with Section 9.5, Guarantee Obligations of (i) Restricted Subsidiaries in respect of Indebtedness of the Borrower or other Restricted Subsidiaries 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 (A) if the Indebtedness being guaranteed under this Section 9.1(d) is subordinated to the Obligations, such Guarantee Obligations shall be subordinated to the Obligations or the Guarantee of the Obligations, as applicable, of the Borrower or such Restricted Subsidiary, 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 Indebtedness under clause (a) above or clause (g), clause (r) or clause (u) below) 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;
(e) Guarantee Obligations incurred in the ordinary course of business in respect of obligations of (or to) suppliers, customers, franchisees, lessors, licensees or sublicensees;
(f) (i) Indebtedness 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 and (iii) any Permitted Refinancing Indebtedness issued or incurred to Refinance any such Indebtedness incurred in reliance on clause (f)(i); provided, in each case, that any Liens securing such Indebtedness do not apply to any assets other than the assets referred to in clause (f)(i) or subject to the Capital Leases referred to in clause (f)(ii);
(g) Indebtedness (other than Indebtedness referred to in clauses (a), (r) and (u) of this Section) outstanding on the Initial Closing Date and listed on Schedule 10.19.1, and any Permitted Refinancing Indebtedness in respect thereofissued or incurred to Refinance such Indebtedness;
(dh) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
during any period other than during an Interim Covenant Period, (e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(fi) Indebtedness of a Person existing 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 Initial Closing Date as the result of a transaction 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 from such Personand, to the extent in each case, was not created in anticipation thereof, and (B) such Indebtedness was is not incurred guaranteed in connection with any respect by the Borrower or in contemplation of, any Restricted Subsidiary (other than any such Person becoming that so becomes a Restricted Subsidiary or is the acquisition survivor of a merger with such assets Person or any of its Subsidiaries), and (ii) any Permitted Refinancing Indebtedness in respect thereof, in an aggregate amount not issued or incurred to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Refinance such Indebtedness;
(i) during any period other than an Interim Covenant Period, Indebtedness owed consisting of secured financings by any Credit Party to another a Foreign Subsidiary in which no Credit Party’s assets are used to secure such Indebtedness;
(j) 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;
(k) obligations in respect of 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 any acquisition or Disposition permitted hereunder;
(n) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later obligations to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, pay insurance premiums or (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been obligations contained in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer firm transportation or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default supply agreements or Event of Default shall exist other take or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiarypay contracts, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries each case arising in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower consisting (or, to the extent such work is done for the Borrower or the Subsidiaries, any direct or indirect parent thereof) and the Restricted Subsidiaries incurred in the ordinary course of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunderbusiness;
(p) during any period other than during an Interim Covenant Period, Indebtedness 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 9.6;
(q) 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;
(i) Indebtedness of the Credit Parties under the Revolving Credit Agreement; provided that (1) the aggregate principal amount of all Indebtedness incurred in reliance on this clause (r) shall not exceed the greater of (A) $4,000,000,000 and (B) if a Borrowing Base is in effect under the Revolving Credit Agreement, the Borrowing Base in effect at such time and (2) such Indebtedness shall constitute “Revolver Obligations” under the Collateral Trust Agreement or shall otherwise constitute Permitted Pari Passu Secured Indebtedness (and may have priority to the Obligations in the payment of Foreclosure Proceeds as provided in the Collateral Trust Agreement or, in a substantially similar manner, in any Pari Passu Intercreditor Agreement);
(s) Indebtedness under Hedge Agreements permitted by Section 9.10;
(t) Indebtedness secured by Liens on (i) real property that is not Oil and Gas Property and that is not material to the operation of any Mortgaged Property and (ii) fixtures and personal property related to the real property in the foregoing clause (i) and that is also not material to the operation of any Mortgaged Property;
(u) unsecured Indebtedness and Junior Lien Debt of the Credit Parties; provided that such Indebtedness incurred after the Initial Closing Date (i) has a stated maturity no earlier than 91 days after the Last Maturity Date in effect at time such Indebtedness is incurred, (ii) has a Weighted Average Life to Maturity no shorter than 91 days after the longest Weighted Average Life to Maturity of any Class of Loans outstanding at the time such Indebtedness is incurred and (iii) in the case of Junior Lien Debt, (A) such Indebtedness shall be secured by Liens on all or a portion of the Collateral on a junior priority basis with the Liens on the Collateral securing the Obligations and shall not be secured by any assets of the Borrower or any Restricted Subsidiary arising from other than the honoring by a bank or other financial institution of a checkCollateral, draft or similar instrument (except in the case of daylight overdraftsB) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five shall not be guaranteed by any Subsidiaries other than the Guarantors and (5C) Business Days the holders of incurrencesuch Indebtedness, or the administrative agent, collateral agent, trustee and/or any similar representative acting on behalf of such holders, shall have become party to the Intercreditor Agreement (or a substantially similar intercreditor agreement reasonably satisfactory to the Borrower and the Term Agent) providing that the Liens on the Collateral securing such Indebtedness shall rank junior in priority to the Liens on the Collateral securing the Obligations;
(v) Indebtedness in an aggregate principal amount not to exceed $75,000,000; and
(qw) to the extent constituting Indebtednessall premiums (if any), liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiencyinterest (including post-petition interest), renewable energy and other eligible improvementsfees, includingexpenses, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clausescharges, and additional or contingent interest on obligations described in clauses (iva) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedthrough (v) above.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(a) the Obligations (excluding Hedging Obligations Indebtedness and obligations owing under Hedge Agreements permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred and obligations owing under (i) Hedge Agreements entered into in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes and (ii) reasonably satisfactory to Cash Management Agreements entered into between the Administrative Agent; provided that Borrower and any counterparty that is Lender or an Affiliate of a Lender shall be deemed satisfactory to the Administrative AgentLender, as counterparty;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.111.1, and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) Capital Leases and purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 90,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(he) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a), (b), (c), (d) and (k) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(f) unsecured intercompany Indebtedness (i) Indebtedness owed by any Credit Party to another Credit Party;
, (jii) owed by any Non-Guarantor Subsidiary to another Non-Guarantor Subsidiary, (iii) owed by any Non-Guarantor Subsidiary to any Credit Party (provided that such Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(kA) Indebtedness of the Borrower and its Restricted Subsidiaries is permitted pursuant to Section 11.3(g) and (B) shall be evidenced by a demand note in form and substance reasonably satisfactory to the Senior Unsecured Notes, Administrative Agent) and (iv) owed by any Refinancing Credit Party to any Non-Guarantor Subsidiary (provided that such Indebtedness pursuant to this clause (iv) shall be subordinated to the Obligations in respect thereof that is unsecured (except that Refinancing Indebtedness issued a manner reasonably satisfactory to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrowAdministrative Agent);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(ng) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(h) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(i) Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) of the Borrower or its Subsidiaries to purchase or redeem Capital Stock or options of the Borrower permitted pursuant to Section 11.6(d); provided that the aggregate principal amount of all such Indebtedness shall not exceed $2,000,000 at any time outstanding;
(j) unsecured Guaranty Obligations arising with respect to customary indemnification obligations owed to purchasers in connection with Asset Dispositions permitted by Section 11.5;
(k) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $30,000,000 at any time outstanding;
(l) Guaranty Obligations of Subsidiaries with respect to Indebtedness of the Borrower permitted pursuant to Section 11.1; provided that such Subsidiaries shall have guaranteed the Obligations pursuant to the Loan Documents;
(m) Indebtedness is extinguished within five (5) Business Days of incurrenceFossil Partners, Fossil Group Europe GmbH, Fossil Asia Pacific Ltd. and/or any other Foreign Subsidiary under the Commercial Letter of Credit Facility not to exceed $80,000,000 in aggregate principal amount at any time outstanding, and Guaranty Obligations of the Borrower or any Subsidiary Guarantor with respect to such Indebtedness; and
(qn) additional Indebtedness so long as (i) the Borrower is in compliance on a pro forma basis with the covenants contained Article X as of the end of the most recently ended Fiscal Quarter for which financial statements have been provided pursuant to Section 8.1(a) or (b), as applicable, after giving effect to the incurrence of such Indebtedness and (ii) no Default or Event of Default has occurred and is continuing or will result after giving effect to the incurrence of such Indebtedness; provided that the Net Cash Proceeds thereof are applied to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating required by and pursuant to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes the terms of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedSection 4.4(b)(iii).
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(a) the Obligations (excluding Hedging (i) Indebtedness and obligations owing under Hedge Agreements permitted pursuant to Section 11.1(b) and (ii) Commercial Letter of Credit Facility Obligations permitted pursuant to Section 10.1(b11.1(m));
(b) Indebtedness incurred and obligations owing under (i) Hedge Agreements entered into in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes and (ii) reasonably satisfactory to Cash Management Agreements entered into between the Administrative Agent; provided that Borrower and any counterparty that is Lender or an Affiliate of a Lender shall be deemed satisfactory to the Administrative AgentLender, as counterparty;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.111.1, and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) Capital Leases and purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 40,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(he) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a), (b), (c), (d) and (k) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(f) unsecured intercompany Indebtedness (i) Indebtedness owed by any Credit Party to another Credit Party;
, (jii) owed by any Non-Guarantor Subsidiary to another Non-Guarantor Subsidiary, (iii) owed by any Non-Guarantor Subsidiary to any Credit Party (provided that such Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(kA) Indebtedness of the Borrower and its Restricted Subsidiaries is permitted pursuant to Section 11.3(g) and (B) shall be evidenced by a demand note in form and substance reasonably satisfactory to the Senior Unsecured Notes, Administrative Agent) and (iv) owed by any Refinancing Credit Party to any Non-Guarantor Subsidiary (provided that such Indebtedness pursuant to this clause (iv) shall be subordinated to the Obligations in respect thereof that is unsecured (except that Refinancing Indebtedness issued a manner reasonably satisfactory to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrowAdministrative Agent);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(ng) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(h) Indebtedness under performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(i) Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their respective family members, estates or trusts or other entities for the benefit of any of the foregoing) of the Borrower or its Subsidiaries to purchase or redeem Capital Stock or options of the Borrower permitted pursuant to Section 11.6(d); provided that the aggregate principal amount of all such Indebtedness shall not exceed $2,000,000 at any time outstanding;
(j) unsecured Guaranty Obligations arising with respect to customary indemnification obligations owed to purchasers in connection with Asset Dispositions permitted by Section 11.5;
(k) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $30,000,000 at any time outstanding;
(l) Guaranty Obligations of Subsidiaries with respect to Indebtedness of the Borrower permitted pursuant to Section 11.1; provided that such Subsidiaries shall have guaranteed the Obligations pursuant to the Loan Documents;
(m) Indebtedness is extinguished within five (5) Business Days of incurrenceFossil Partners, Fossil Group Europe GmbH, Fossil Asia Pacific Ltd. and/or any other Foreign Subsidiary under the Commercial Letter of Credit Facility not to exceed $80,000,000 in aggregate principal amount at any time outstanding, and Guaranty Obligations of the Borrower or any Subsidiary Guarantor with respect to such Indebtedness; and
(qn) to the extent constituting additional unsecured Indebtedness (including Permitted Convertible Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate principal amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower 350,000,000 at any time outstanding; provided that (i) shall on the date of incurrence thereof the Borrower is in compliance on a pro forma basis with the covenants contained Article X as of the end of the most recently ended Fiscal Quarter for which financial statements have been provided pursuant to Section 8.1(a) or (b), as applicable, after giving effect to the right to determine in its sole discretion the clause to which incurrence of such Indebtedness is (and the Borrower shall deliver a certificate from a Responsible Officer in form and detail reasonably satisfactory to be allocatedthe Administrative Agent confirming the foregoing and demonstrating compliance with the financial covenants after giving effect thereto on a pro forma basis), (ii) shall not be required on the date of incurrence thereof no Default or Event of Default has occurred and is continuing or will result after giving effect to allocate the amount incurrence of such Indebtedness to more than one of such clausesIndebtedness, (iii) may elect in its sole discretion to apportion the final maturity of such Indebtedness between is not prior to, and such Indebtedness does not require any scheduled amortization or among other scheduled payments of principal prior to, the date that is one hundred eighty one (181) days after the later of the Revolving Credit Maturity Date and the Term Loan Maturity Date (it being understood that neither (A) any two provision requiring an offer to purchase Permitted Convertible Indebtedness as a result of a change of control or more asset sale or other fundamental change nor (B) any early conversion of any Permitted Convertible Indebtedness in accordance with the terms of the documentation governing such clausesPermitted Convertible Indebtedness shall violate the foregoing restriction), and (iv) may reallocate or reclassify all or any part the Net Cash Proceeds thereof are applied to the extent required by and pursuant to the terms of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedSection 4.4(b)(iii).
Appears in 1 contract
Limitations on Indebtedness. Create(a) The Borrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, be liable or create, incur, assume assume, guarantee or suffer to exist otherwise become liable with respect to, any Indebtedness exceptother than:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed evidenced by any Credit Party the notes issued to another Credit Party;the Note Lenders.
(jii) Indebtedness of outstanding on the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower date hereof and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, disclosed on Schedule 5 and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrowextension, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower renewal or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence refunding of such Indebtedness, (ii) provided that, on the date of any such extension, renewal or refunding and immediately after giving effect thereto and to the incurrence concurrent retirement of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, other Indebtedness:
(iiiA) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market termsexists;
(mB) additional secured the principal amount of the Indebtedness which is to be extended, renewed or refunded is not increased; and
(C) the maturity of the Indebtedness which is to be extended, renewed or refunded is not reduced;
(iii) Indebtedness incurred by any Wholly-owned Subsidiary in addition to that otherwise permitted pursuant to by this Section in an aggregate amount outstanding not 7.3, provided that, on the date of any such incurrence and immediately after giving effect thereto and to exceed an amount equal to ten percent the concurrent retirement of any other Indebtedness:
(10%A) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under exists; and
(B) the total amount of all Indebtedness of the Wholly-Owned Subsidiaries of the Borrower (except Indebtedness owed to the Borrower or to a Wholly-Owned Subsidiary) and all Indebtedness of the Borrower and/or any of its Wholly-Owned Subsidiaries secured by Liens of the kind described in clause (e) of Section 7.4, does not exceed 10% of Consolidated Net Worth; and
(iv) Indebtedness incurred by the Borrower in addition to that otherwise permitted by this Section 10.1(m) retroactively); 7.3, provided that (i) that, on the amount date of any such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date incurrence and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and immediately after giving effect thereto, thereto and to the concurrent retirement of any other Indebtedness:
(A) no Default or Event of Default shall exist or be continuing and exists; and
(ivB) notwithstanding the Consolidated Debt does not exceed 50% of Consolidated Total Leverage Ratio Capitalization;
(v) Indebtedness incurred pursuant to the Loans and Indebtedness hereunder in respect of the Letters of Credit; and
(vi) Indebtedness owed to the Company or to a Wholly-Owned Subsidiary.
(b) For purposes of this Section 7.3, any Person becoming a Subsidiary after the date hereof shall be deemed, at such timethe time it becomes a Subsidiary, a Springing Lien Event to have incurred all of its then outstanding Indebtedness, and any Person extending, renewing or refunding any Indebtedness shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time of such reallocation extension, renewal or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedrefunding.
Appears in 1 contract
Sources: Loan Agreement (Merix Corp)
Limitations on Indebtedness. Create(a) The Company will not, incurand will not permit any Subsidiary to, assume create, issue, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(ai) Indebtedness evidenced by the Notes and the Subsidiary Guaranty;
(ii) Indebtedness of a Subsidiary Guarantor evidenced by the Guaranty delivered pursuant to the Bank Credit Agreement; provided that the Indebtedness evidenced by any such Guaranty constitutes Qualified Subsidiary Indebtedness;
(iii) Indebtedness of the Company and its Subsidiaries outstanding as of the date of this Agreement and described on SCHEDULE 5.15 hereto;
(iv) additional Indebtedness of the Company and its Subsidiaries; provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(1) the Obligations ratio of Consolidated Indebtedness to Total Asset Value as at such date shall not exceed 0.55 to 1.00;
(excluding Hedging Obligations permitted pursuant 2) the ratio of Total Unencumbered Asset Value to Section 10.1(b))Total Unsecured Indebtedness as at such date shall not be less than 1.75 to 1.00;
(3) the ratio of Total Secured Indebtedness to Total Asset Value as at such date shall not exceed 0.40 to 1.00;
(4) Total Unsecured Subsidiary Indebtedness as at such date shall not exceed 10% of Total Asset Value as at such date; and
(v) Indebtedness of a Subsidiary to the Company or to a Wholly-owned Subsidiary and Indebtedness of the Company to a Wholly-owned Subsidiary.
(b) The Company will not as at the end of each fiscal quarter permit Total Unsecured Subsidiary Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;exceed 10% of Total Asset Value.
(c) Indebtedness existing on within the Closing Date and listed on Schedule 10.1limitations of SECTION 10.5(A)(III) may be renewed, and any Refinancing Indebtedness extended, refinanced, replaced or refunded (without increase in respect thereof;principal amount) without regard to the limitations of SECTION 10.5(A)(IV).
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of Any Person which becomes a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur date hereof shall for all purposes of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall SECTION 10.5 be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness created, issued, assumed or incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time it becomes a Subsidiary all Indebtedness of such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedPerson existing immediately after it becomes a Subsidiary.
Appears in 1 contract
Sources: Note Purchase Agreement (St Joe Co)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement not entered into for speculative purposes and with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender or an Affiliate of a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Restatement Date and not otherwise permitted under this Section and listed on Schedule 10.111.1, and any Refinancing Indebtedness the renewal, refinancing, extension and replacement (but not the increase in respect the aggregate principal amount) thereof;
(d) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries Indebtedness incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, Capital Leases in an aggregate amount not to exceed on any date of determination the greater of $100,000,000 at any time outstanding40,000,000 and 10% of Consolidated EBITDA for the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date for which financial statements have been delivered pursuant to Section 8.1;
(ge) Guaranty Obligations of any Subsidiary in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(hf) Guaranty Obligations of any Subsidiary with respect to Indebtedness permitted pursuant to subsections (a) through (d) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(g) Indebtedness (i) of a Person that becomes a Subsidiary of the Parent Borrower after the Restatement Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, or in connection with, such Person becoming a Subsidiary or such assets being acquired and (y) shall not exceed in the aggregate on any date of determination the greater of $35,000,000 and 10% of Consolidated EBITDA for the period of four (4) consecutive fiscal quarters most recently ended on or prior to such date for which financial statements have been delivered pursuant to Section 8.1;
(h) Indebtedness owed by any Credit Party Subsidiary Guarantor to another Credit Party;
(i) Subordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ii) the Administrative Agent shall have received satisfactory written evidence that the Borrowers would be in compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the issuance of any such Subordinated Indebtedness;
(j) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the Borrower or ordinary course of business, and any Restricted Subsidiary consisting refinancings thereof to the extent not provided to secure the repayment of Qualified Trust other Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and owed by any Refinancing Indebtedness in respect thereof Subsidiary that is unsecured (except not a Credit Party to any other Subsidiary that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)is not a Credit Party;
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that owed by (A) any Credit Party to any Subsidiary which is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)not a Credit Party; provided that (i) such Indebtedness matures at least six shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (6B) months any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the later to occur Restatement Date, shall not exceed, as of the Revolving date such Indebtedness is incurred, made or increased, $225,000,000; provided, further, that, any Indebtedness owed to any Credit Maturity Date Party pursuant to this clause (l) shall be evidenced by a promissory note in form and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect substance reasonably satisfactory to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower Administrative Agent and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, shall be pledged and the Borrower shall have delivered to the Administrative Agent a certificate pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Parent Borrower and its Subsidiaries shall be in pro forma compliance (as of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time date of the incurrence of such Indebtedness and after giving effect thereto, ) with each covenant contained in Article X; (ii) no Default or Event of Default has occurred and is continuing at the time of such incurrence (or would exist after giving effect thereto); (iii) such Indebtedness shall exist or be continuing and rank no higher than pari passu in right of payment with the Obligations; (iv) such Indebtedness is not subject to any scheduled amortization, mandatory redemption, mandatory repayment or mandatory prepayment, sinking fund or similar payment (other than, in each case, reasonable and customary offers to repurchase upon a change of control or asset sale and acceleration rights after an event of default) or have a final maturity date, prior to the documentation date occurring one (1) year following the Revolving Credit Maturity Date; (v) the indenture or other applicable agreement governing such Indebtedness contains customary market terms(including any related guaranties and any other related documentation) shall not include any financial performance “maintenance” covenants (whether stated as a covenant, default or otherwise, although “incurrence-based” financial tests may be included) or cross-defaults (but may include cross-defaults at the final stated maturity thereof and cross-acceleration); (vi) the terms of such Indebtedness (including, without limitation, all covenants, defaults, guaranties and remedies, but excluding provisions as to interest rate, call protection and redemption premiums), taken as a whole, are no more restrictive or onerous than the terms applicable to the Parent Borrower and its Subsidiaries under this Agreement and the other Loan Documents, (vii) such Indebtedness shall not be recourse to, or guaranteed by, any Person that is not a Credit Party, (viii) prior to the incurrence of such Indebtedness the Parent Borrower shall have delivered to the Administrative Agent a certificate from a Responsible Officer of the Parent Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to the Administrative Agent with respect to clause (i) above;
(mn) Indebtedness with respect to the 2026 Senior Notes (including any guarantees thereof), in an aggregate amount not to exceed $400,000,000, or any modification, refinancing, refunding, renewal or extension of the 2026 Senior Notes (but not increasing the aggregate principal amount thereof); and
(o) additional secured Indebtedness of the Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) the greater of $75,000,000 and 20% of Consolidated Tangible Assets, determined, with respect EBITDA for the period of four (4) consecutive fiscal quarters most recently ended on or prior to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter such date for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof delivered pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified8.1.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b)under Swap Contracts);
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty Swap Contract, in each case, incurred in the ordinary course of business and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentnot for speculative purposes;
(c) Indebtedness existing on the Closing Date and listed Date, as set forth on Schedule 10.17.01, and any Refinancing Indebtedness the renewal, refinancing, extension and replacement (but not the increase in respect the aggregate principal amount) thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesCapital Leases in an aggregate amount not to exceed the greater of (i) four and one-half percent (4.5%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the Borrower and its Subsidiaries are available), and (ii) $30,000,000;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, Subsidiaries in an aggregate amount not to exceed the greater of (i) four and one-half percent (4.5%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the Borrower and its Subsidiaries are available), and (ii) $100,000,000 at any time outstanding30,000,000;
(f) Guarantees in favor of the Lender for the benefit of the Lender (and its Affiliates, as applicable);
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations Guarantees with respect to Indebtedness permitted pursuant to subsections (b) through (e) or subsections (k), (p) and (q) of this Section; provided ;
(h) Indebtedness owed (i) by the Borrower to any Guarantor, (ii) by any Guarantor to the Borrower, (iii) by any Guarantor to any other Guarantor, or (iv) by any Subsidiary that is not a Guarantor to any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtednessother Subsidiary that is not a Guarantor;
(i) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Indebtedness owed by the Borrower and any Guarantor to any Foreign Subsidiary or Indebtedness owed by any Credit Party Foreign Subsidiary to another Credit Partythe Borrower and any Guarantor which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 7.03(i) and 7.05(f), does not exceed $100,000,000 in the aggregate during the period from the Closing Date through and including the Maturity Date;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Subordinated Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that in the case of each issuance of Subordinated Indebtedness, (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness and (ivii) the documentation governing Lender shall have received satisfactory written evidence that the Borrower and its Subsidiaries would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness contains customary market termsSubordinated Indebtedness;
(mk) additional secured Indebtedness of the Borrower and its Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten five percent (105%) of Consolidated Tangible Assets, determined, with respect to each Total Assets (determined at the time of incurrence of Indebtedness pursuant to this Section 10.1(m), as thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses Borrower and its Subsidiaries are available);
(al) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that so long as no Default or Event of Default shall has occurred and is continuing or would occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured as a result therefrom, Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as arising in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in connection with an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)Accounts Securitization;
(nm) Indebtedness incurred by the Borrower endorsements of negotiable instruments for deposit or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries collection in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not ;
(n) unsecured Indebtedness in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnificationperformance bonds, deferred purchase price adjustments worker’s compensation claims, surety or appeal bonds and payment obligations in connection with self-insurance or similar obligations, in each case, case to the extent incurred or assumed in connection with the acquisition ordinary course of any business or assets permitted to be acquired hereunderbusiness;
(o) [Intentionally Omitted];
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from and its Subsidiaries in respect of the honoring by Revolving Credit Agreement in a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, maximum amount not to exceed $1,000,000,000; provided that such Indebtedness is extinguished within five (5i) Business Days shall not be guaranteed by any Person that has not also guaranteed all of incurrencethe Obligations, provided that this clause (i) shall not prohibit the Euro Subsidiary from guaranteeing the obligations of the Canadian Subsidiary under the Revolving Credit Agreement, (ii) shall not rank higher than pari passu with the Obligations, (iii) shall not have restrictions, limitations or encumbrances on the ability of the Borrower or any its Subsidiaries to incur Liens to secure the Obligations (other than customary equal and ratable provisions that would permit the Obligations to be secured on at least a pari passu basis with such Indebtedness); and
(q) to the extent constituting IndebtednessIndebtedness consisting of Qualified Unsecured Issuances and any refinancings, liabilities in connection with property assessed clean energy financing refundings, renewals or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower extensions thereof; provided that (i) such refinancing shall have be on terms and conditions, satisfactory to the right Lender, that are (A) consistent with the then-current market terms and conditions of such type of unsecured debt (as reasonably determined in good faith by the board of directors of the Borrower) and (B) no less favorable to determine in its sole discretion the clause to which such Indebtedness is to be allocatedLender than the terms of the Qualified Unsecured Issuances, (ii) no Default or Event of Default shall not have occurred and be required to allocate continuing or would be caused by such refinancing, refunding, renewal or extension thereof, (iii) the principal amount of such Indebtedness to more than one is not increased at the time of such clausesrefinancing, (iii) may elect in its sole discretion refunding, renewal or extension except by an amount equal to apportion such Indebtedness between a reasonable premium or among any two or more of such clausesother reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, (iv) may reallocate the final maturity date and weighted average life of such refinancing, refunding, renewal or reclassify extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (v) such refinancing, refunding, renewal or extension shall (A) be unsecured, (B) not rank higher than pari passu with the Obligations and (C) not be guaranteed by any Person that has not also guaranteed all of the Obligations. provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower to make any payment to the Borrower or any part of such Indebtedness between its Subsidiaries (in the form of dividends, intercompany advances or among any one or more otherwise) for the purpose of such clauses at any time and from time enabling the Borrower to time, provided that, at pay the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.
Appears in 1 contract
Sources: Credit Agreement (Pool Corp)
Limitations on Indebtedness. CreateDirectly or indirectly create, incur, assume or suffer otherwise become or remain directly or indirectly liable with respect to exist any Indebtedness except:except for the following (collectively, “Permitted Indebtedness”):
(a) the Obligations Indebtedness (excluding Hedging Obligations permitted i) incurred by any Loan Party pursuant to Section 10.1(b))the Term Loan Facility and Indebtedness incurred by any Loan Party otherwise than pursuant to the Term Loan Facility (including pursuant to any Additional Obligations Documents or any Permitted Debt Exchange but not pursuant to the Loan Documents) in an aggregate principal amount not to exceed (A) $1,440,000,000 plus (B) the Maximum Incremental Facilities Amount and (ii) incurred pursuant to the Senior Notes Debt Documents in an aggregate principal amount not to exceed $950,000,000;
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred in connection with a Hedging pursuant to this Agreement with a counterparty and upon terms and conditions the other Loan Documents (including interest rate) reasonably satisfactory to the Administrative Agent; provided that including, without limitation, any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentIncremental Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Unsecured Ratio Indebtedness existing on (including, subject to meeting the Closing Date and listed on Schedule 10.1Total Leverage Ratio requirement set forth in the definition of “Unsecured Ratio Indebtedness”, and any Refinancing Indebtedness in respect thereofAdditional Obligations that are unsecured);
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to other than Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (b“Closing Date Existing Indebtedness”), respectivelytogether with any renewal, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default extension, refinancing or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket refunding pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)below;
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. Create(a) The Company will not, --------------------------- and will not permit any Restricted Subsidiary to, create, incur, assume or suffer permit to exist any Indebtedness Indebtedness, except:
(ai) Indebtedness created under the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Loan Documents;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(cii) Indebtedness existing on the Closing Date date hereof and listed set forth on Schedule 10.16.01 attached hereto, and extensions, renewals or replacements of any Refinancing such Indebtedness in respect that do not increase the outstanding principal amount thereof;
(diii) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Company or any other Subsidiary; provided that Indebtedness of -------- any Subsidiary that is not a Loan Party to the Company or any Subsidiary Loan Party shall be subject to Section 6.04;
(iv) Guarantees by the Company of Indebtedness or operating lease payment obligations of any Subsidiary and by any Subsidiary of Indebtedness of any other Subsidiary; provided that Guarantees by the Company or any -------- Subsidiary Loan Party of Indebtedness or operating lease payment obligations of any Subsidiary that is not a Loan Party shall be subject to Section 6.04;
(v) Purchase Money Indebtedness of the Company or any Restricted Subsidiary (other than Subsidiaries in the RCN-BecoCom Group or Starpower Group); provided that the sum of the aggregate principal -------- amount of Indebtedness permitted by this clause (v) and the aggregate amount of Attributable Debt in respect of sale and leaseback transactions of the Company and its Restricted Subsidiaries incurred in connection with Finance Leases;
(eother than the RCN-BecoCom Group and the Starpower Group) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was permitted by Section 6.06 shall not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 180,000,000 at any time outstanding;
(gvi) Guaranty Obligations in favor Indebtedness of any Person that becomes a Restricted Subsidiary after the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Sectiondate hereof; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect exists at the time -------- such Person becomes a Restricted Subsidiary and is not created in contemplation of the incurrence of or in connection with such IndebtednessPerson becoming a Restricted Subsidiary; and extensions, (ii) after giving effect to the incurrence renewals or replacements of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on that do not increase the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market termsprincipal amount thereof;
(mvii) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as Permitted Debt of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively)Company; provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five -------- permitted by Section 6.12(c) and (5j) Business Days of incurrence; andwhen incurred;
(qviii) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing other secured or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of unsecured Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all Company or any part Restricted Subsidiary not in excess of such Indebtedness between or among any one or more of such clauses $25,000,000 at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.outstanding;
Appears in 1 contract
Sources: Credit Agreement (RCN Corp /De/)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b)Obligations);
(b) Indebtedness incurred the Senior Secured Notes in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory an aggregate principal amount not to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentexceed $305,175,000;
(c) Indebtedness in respect of letters of credit (that do not constitute Letters of Credit hereunder) issued by a financial institution or institutions having an aggregate stated amount not exceeding the difference between $6,400,000 and the aggregate L/C Obligations outstanding from time to time hereunder (“Permitted LCs”), that are collateralized with cash or cash equivalents in an amount at least equal to (but not exceeding 105% of) the aggregate stated amount of such letters of credit;
(d) Intentionally Omitted
(e) Intentionally Omitted;
(f) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and listed on Schedule 10.1, and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness in respect thereof;
(d) Indebtedness is not increased at the time of the Borrower such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and its Restricted Subsidiaries incurred fees and expenses reasonably incurred, in connection with Finance Leases;
such refinancing and by an amount equal to any existing commitments unutilized thereunder and (eii) purchase money any refinancing, refunding, renewal or extension of any Subordinated Indebtedness of shall be (A) on subordination terms at least as favorable to the Borrower Lenders, (B) no more restrictive on the Credit Parties than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and its Restricted Subsidiaries, and any Refinancing Indebtedness (C) in respect thereof;
(f) Indebtedness of a Person existing an amount not less than the amount outstanding at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofrefinancing, in an aggregate amount not to exceed $100,000,000 at any time outstandingrefunding, renewal or extension;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to clauses (a) through (c) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;.
(i) Intercompany Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower Holdings or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and Holdings or any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)Subsidiary; provided that (i) such Indebtedness matures at least six (6) months after the later to occur no Event of the Revolving Credit Maturity Date Default has occurred and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, is continuing or would result therefrom and (ii) after giving effect all such extensions of credit shall be documented in the form of subordinated promissory notes and such notes shall be delivered, with such appropriate endorsement or other collateral assignment documents to the incurrence Collateral Agent as Collateral in accordance with the Security Documents.
(j) additional Indebtedness of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower Holdings and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate principal amount outstanding not to exceed an amount equal to ten percent $3,778,000 at any time outstanding (10%) including Indebtedness in respect of Consolidated Tangible Assets, determined, with respect to each incurrence of Capital Leases and Purchase Money Indebtedness pursuant to this Section 10.1(moutstanding at any time), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and ; provided that no Default or Event of Default shall occur under this Section 10.1(m) retroactively)has occurred and is continuing, or would result therefrom; provided that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (iby covenant or otherwise) the amount ability of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed make any payment to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower Holdings or any of its Restricted SubsidiariesSubsidiaries (in the form of dividends, including Indebtedness represented by letters of credit intercompany advances or otherwise) for the account purpose of enabling the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by Borrowers to pay the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Debt except:
(ai) Debt incurred pursuant to the Obligations Loan Documents (excluding Hedging Obligations Hedge Agreements permitted pursuant to Section 10.1(b))the following clause) and Second Lien Loan Documents;
(bii) Indebtedness Debt incurred in connection with a Hedging Agreement Hedge Agreements (A) with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative AgentAgent or (B) required pursuant to Section 5.01(p); provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(ciii) Indebtedness Debt existing on the Closing Second Amendment Effective Date and not otherwise permitted under this Section and listed on Schedule 4.01(v), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof; provided that the principal amount of such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(iv) Debt of the Borrower and its Subsidiaries incurred in connection with Capitalized Leases before the Second Amendment Effective Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof5.02(a)(iv) hereto;
(dv) Indebtedness purchase money Debt of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leasesbefore the Second Amendment Effective Date and listed on Schedule 5.02(a)(v) hereto;
(evi) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;[Reserved].
(fvii) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations Guaranties in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(hviii) Guaranty Obligations Guaranties with respect to Indebtedness Debt permitted pursuant to clauses (i) through (v) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtednesssubsection;
(iix) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness Affiliate Subordinated Debt issued for the sole purpose of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IXfunding, and the Borrower shall have delivered proceeds thereof are in fact promptly used to fund: (A) (I) the Administrative Agent a certificate transactions contemplated in Section 2.3 of its chief financial officer or treasurer the Second Amendment in an amount not to such effect setting forth in reasonable detail the computations necessary to determine such complianceexceed $30,000,000, (iiiII) at the time transactions contemplated in Section 2.4 of the incurrence Second Amendment in an amount equal to $20,000,000, (III) the transactions contemplated in Section 2.5, Section 2.6 and Section 2.7 of such Indebtedness the Second Amendment and after giving effect thereto(IV) either (x), so long as no Default or Event of Default shall exist or have occurred and be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall would occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, from the Second Amendment Effective Date until December 31, 2010, the repayment of Advances (as defined in the Second Lien Credit Agreement) at a discount of no Default or Event of Default shall exist or be continuing and less than the discount at which Advances (ivas defined in the Second Lien Credit Agreement) notwithstanding were repaid pursuant to the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use repayment transactions contemplated in Section 2.3 of the $250,000,000 basket Second Amendment, in each case subject to terms and conditions, including without limitation documentation, acceptable to the Administrative Agent, or (y) the repayment of Term Advances made pursuant to Section 2.06(b)(i)(G); provided that the Affiliate Subordinated Debt issued pursuant to this clause (iA) above shall not exceed $51,000,000 in an aggregate amount greater than $150,000,000 and the aggregate; (B) increases in the Borrower shall provide notice and its Subsidiaries’ Cage Cash or Operating Liquidity so long as (x) the issuance of the Affiliate Subordinated Debt is necessary for the Borrower and its Subsidiaries to achieve the minimum financial covenants set forth in Section 5.04(c) and 5.04(d) at the time such Affiliate Subordinated Debt is issued, (y) the Borrower delivers to the Administrative Agent thereof written notice, in form and substance reasonably acceptable to the Administrative Agent, describing the issuance of such Affiliate Subordinated Debt and the surrounding circumstances at least 5 Business Days prior to the issuance of such Affiliate Subordinated Debt and (z) the aggregate amount of all Affiliate Subordinated Debt permitted pursuant to Section 7.4(h);
this clause (nB) Indebtedness incurred by is equal to or less than $5,000,000 in the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit aggregate; and (C) made for the account sole purpose of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.paying amounts due under
Appears in 1 contract
Sources: First Lien Credit Agreement (Landrys Restaurants Inc)
Limitations on Indebtedness. CreateThe Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume or suffer permit to exist any Indebtedness Indebtedness, except:
(a) Indebtedness created under the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Loan Documents;
(b) Indebtedness incurred of the Borrower or any of its Subsidiaries existing on the date hereof and set forth in connection Schedule 6.01, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof or result in an earlier maturity date or decreased weighted average life thereof or increase the amount or nature of the collateral with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agentrespect thereto;
(c) Indebtedness existing of the Borrower or any of it Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets, 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 Closing Date and listed on Schedule 10.1acquisition thereof, and extensions, renewals and replacements of any Refinancing such Indebtedness that do not increase the outstanding principal amount thereof or result in respect an earlier maturity date or decreased weighted average life 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 clause (c) shall not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets;
(d) Indebtedness of the Borrower or any of its Subsidiaries under any Hedging Agreement entered into in the ordinary course of business and its Restricted Subsidiaries incurred in connection with Finance Leasesthe prior written consent of the Lender, which consent shall not be unreasonably withheld;
(e) purchase money Indebtedness Subordinated Debt of the Borrower and its Restricted Subsidiariesnot to exceed an aggregate of $3,000,000, incurred pursuant to the Investment Agreement, and any Refinancing Indebtedness the agreements referred to in respect thereof;the definition of "Second Tranche"; and
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) unsecured Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time Subsidiaries not permitted by any other clause of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate principal amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on all such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) at any one time outstanding up to but not exceeding $500,000. Notwithstanding the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000foregoing, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or will not, and will not permit any of its Restricted SubsidiariesSubsidiaries to, including create, incur, assume or permit to exist any Indebtedness represented owing to SBI INVESTMENTS (other than Borrower's Indebtedness permitted by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower clause (e) above) or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedAffiliates.
Appears in 1 contract
Sources: Credit Agreement (Vfinance Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) On the Obligations (excluding Hedging Obligations permitted pursuant last day of each fiscal quarter of the Borrower and, if the Maturity Date is to be extended as provided in Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing 2.08, on the Closing Date and listed on Schedule 10.1Termination Date, and any Refinancing Indebtedness in respect thereof;
(d) the Borrower will not permit the ratio of Consolidated Net Indebtedness of the Borrower and its Restricted Consolidated Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness on such date to Consolidated Operational EBITDA of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
Consolidated Subsidiaries for the period of four consecutive fiscal quarters ending on such date (f) Indebtedness or if such date of determination shall not be the last day of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Personfiscal quarter, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended recent fiscal quarter for which financial statements shall have been furnished pursuant to clauses (adelivered under Section 5.02(a) and or (b)) to exceed 4.0:1.
(b) The Borrower will not permit any Consolidated Subsidiary to create, respectivelyincur, assume or permit to exist any Indebtedness (including, solely for purposes of Section 7.1 (it being understood that this Section 10.1(mSection, any Guarantee of the DoCoMo Repurchase Obligations) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that other than (i) Indebtedness existing on the amount date hereof and set forth in Schedule 6.02 and any refinancing, extensions, renewals and replacements of any such secured Indebtedness that is recourse to any Credit Party shall do not exceed $250,000,000increase the outstanding principal amount thereof or result in an earlier maturity date or decrease the weighted average life thereof, (ii) such Indebtedness matures at least six (6) months after owed to the later Borrower or any other Consolidated Subsidiary and not assigned or pledged by the obligee to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtednessany other Person, (iii) Indebtedness in connection with Receivables Securitization Transactions permitted pursuant to Section 6.01, (iv) Indebtedness existing at the time a Consolidated Subsidiary (not having previously been a Subsidiary) (A) becomes a Consolidated Subsidiary or (B) is merged or consolidated with or into a Consolidated Subsidiary), (v) Indebtedness created under this Agreement or the Subsidiary Guarantee Agreement or, (vi) other Indebtedness of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above Subsidiaries in an aggregate principal amount greater than not exceeding $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses 500,000,000 at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedoutstanding.
Appears in 1 contract
Sources: 364 Day Competitive Advance and Revolving Credit Facility Agreement (At&t Wireless Services Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agententered into for non-speculative purposes; provided that if the Hedging Obligations pursuant to any counterparty that is a Lender shall such Hedging Agreement relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be deemed satisfactory incurred by the Loan Documents and (ii) the notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to the Administrative Agentwhich such Hedging Obligations relate;
(c) Indebtedness existing on the Closing Effective Date and listed on Schedule 10.17.1(t), and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by accrued but unpaid interest on the refinanced Indebtedness and an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders as, and no more restrictive on Holdings and its Subsidiaries than, the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (B) in a principal amount not less than the principal amount outstanding at the time of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower Holdings and its Restricted Subsidiaries incurred in connection with Finance Capital Leases, purchase money Indebtedness or mortgage financings of Holdings and its Subsidiaries, and any refinancings, refundings, renewals or extensions thereof meeting the conditions set forth in the proviso to clause 11.1(c), in an aggregate amount not to exceed $10,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofassets, in an aggregate amount not to exceed $100,000,000 in the aggregate at any time outstandingoutstanding $5,000,000 and any refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the accrued but unpaid interest on such refinanced Indebtedness and a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders as, and no more restrictive on Holdings and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (B) in a principal amount not less than the principal amount outstanding at the time of such refinancing, refunding, renewal or extension;
(gf) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(hg) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (d) and (j) through (m) of this Section; provided that (i) any guarantee Guaranty Obligations with respect to Indebtedness permitted pursuant to clause (j) of Refinancing Indebtedness this Section shall only be considered an investment in the Foreign Subsidiary and shall be permitted if it meets under this clause (g) only to the requirements extent such investment is permitted under Section 11.3 and (ii) any Guaranty Obligation with respect to Indebtedness permitted pursuant to clause (k) of this Section shall be subordinated to the same extent as the subordination of such Indebtedness;
(h) Indebtedness of (i) any Credit Party owed to another Credit Party, (ii) any Credit Party owed to a Subsidiary that is not a Credit Party, (iii) any Subsidiary that is not a Credit Party owed to any Credit Party and (iv) any Subsidiary that is not a Credit Party owed to any other Subsidiary that is not a Credit Party; provided that (i) the aggregate amount of Indebtedness permitted by clause (iii) of this Section 11.1(h), together with the aggregate amount of investments permitted pursuant to Section 11.3(p), shall not exceed $10,000,000, (ii) all such intercompany Indebtedness of a Credit Party owed to a Subsidiary that is not a Credit Party shall be unsecured and (subject to any limitation under laws applicable to such Subsidiary that is not a Credit Party, its directors or its stockholders) subordinated in right of payment to the payment in full in cash of the definition Obligations solely in connection with any bankruptcy, insolvency or liquidation proceeding and (iii) if any intercompany Indebtedness of Refinancing Indebtednessany Subsidiary that is not a Credit Party owed to any Credit Party is represented by a physical note, such note shall be pledged to the Administrative Agent for the benefit of the Secured Parties;
(i) Indebtedness owed secured by any Credit Party to another Credit PartyLiens permitted by clause (j) of Section 11.2; provided that such Indebtedness is extinguished within five (5) Business Days of its incurrence;
(j) Indebtedness of the Borrower or Foreign Subsidiaries in an aggregate principal amount not exceeding $7,500,000 at any Restricted Subsidiary consisting date of Qualified Trust Indebtednessdetermination;
(k) additional Subordinated Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance Holdings or any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrowits Subsidiaries in an aggregate amount outstanding not to exceed $15,000,000; provided that, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form case of senior unsecured notes that otherwise meet the requirements set forth in the last sentence each issuance of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrowSubordinated Indebtedness, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing or would be caused by the issuance of such Subordinated Indebtedness, and (ivii) the documentation governing Administrative Agent shall have received reasonably satisfactory written evidence that the Credit Parties would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness contains customary market termsSubordinated Indebtedness;
(ml) additional secured unsecured Indebtedness of Borrower or any of its Subsidiaries not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent $30,000,000; and
(10%m) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m)the Senior Subordinated Note Documents; and any refinancings, as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b)refundings, respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default renewals or Event of Default shall occur under this Section 10.1(m) retroactively)extensions thereof; provided that (i) the principal amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the incurrence of accrued but unpaid interest on such Indebtedness, (iii) at the time of the incurrence of such refinanced Indebtedness and after giving effect theretoa reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms of any such refinancings, refundings, renewals or extensions thereof, taken as a whole, are no less favorable to the Lenders or Borrower; provided that, except as provided in Section 11.11, no Default agreement or Event of Default shall exist or instrument with respect to Indebtedness permitted to be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of Borrower to make any payment to Borrower or any of its Restricted SubsidiariesWholly-Owned Subsidiaries (in the form of dividends, including Indebtedness represented by letters of credit intercompany advances or otherwise) for the account purpose of enabling Borrower to pay the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.
Appears in 1 contract
Sources: Credit Agreement (PAS, Inc.)
Limitations on Indebtedness. CreatePermit any Material Subsidiary to create, incur, assume or suffer to exist any Indebtedness except:
(a) Indebtedness of any Material Subsidiary owed to the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Borrower, any Subsidiary or any Excluded Subsidiary;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty contingent pay-out and upon terms and conditions (including interest rate) reasonably satisfactory similar obligations relating to the Administrative Agent; provided that acquisitions by any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentMaterial Subsidiary;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness obligations in respect thereofof Hedging Agreements incurred in the ordinary course of business;
(d) Indebtedness incurred or assumed to finance the acquisition, construction or improvement of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leasesany asset;
(e) purchase money Indebtedness of any Person that becomes a Material Subsidiary after the Borrower date hereof; provided, that such Indebtedness exists at the time such Person becomes a Material Subsidiary and its Restricted Subsidiaries, and any Refinancing Indebtedness is not created in respect thereofcontemplation of or in connection with such Person becoming a Material Subsidiary;
(f) Indebtedness of any Material Subsidiary that is not a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandingDomestic Subsidiary;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn or wire transfer against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence;
(h) Indebtedness in existence on the date hereof;
(i) Guaranty Obligations in respect of Indebtedness of the Borrower or any of its Subsidiaries or Excluded Subsidiaries permitted hereunder;
(j) any extension, renewal or replacement of any Indebtedness permitted by clause (b), (c), (d), (e) or (h) above that does not increase the outstanding principal amount thereof; and
(qk) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, Indebtedness not otherwise permitted by this Section 10.1 in an aggregate outstanding principal amount outstanding for all Material Subsidiaries not to exceed exceeding $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets 150,000,000 in the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses aggregate at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Specified Hedge Obligations to the extent permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred and obligations owing under Hedge Agreements entered into in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including order to manage existing or anticipated interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent, exchange rate or commodity price risks and not for speculative purposes;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.17.1(u) and any refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to accrued but unpaid interest on the refinanced Indebtedness and any reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any Refinancing existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on Holdings and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in respect thereofan amount not less than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesCapital Leases and Indebtedness incurred for the purpose of financing all of any part of the purchase price of cost of design, construction, installation, improvement or acquisition of personal or real property used in the business of Holdings or any of its Subsidiaries, in an aggregate principal amount not to exceed $25,000,000 at any time outstanding and any refinancings, refundings, renewals or extensions thereof meeting the conditions set forth in the proviso in Section 11.1(c);
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such PersonPerson in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with with, or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets, (ii) no Credit Party nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and any Refinancing (iii) the aggregate outstanding principal amount of such Indebtedness in respect thereof, in an aggregate amount does not to exceed $100,000,000 25,000,000 at any time outstanding, and any refinancings, refundings, renewals or extensions thereof meeting the conditions set forth in the proviso in Section 11.1(c);
(gf) Guaranty Obligations in favor with respect to Indebtedness otherwise permitted to be incurred pursuant to subsections (a) through (e), (i), (j), (k), (l) and (n) of the Administrative Agent for the benefit of the Secured Parties;
this Section 11.1; provided that (hi) any Guaranty Obligations with respect to Indebtedness permitted pursuant to clause (k) of this Section; provided that any guarantee of Refinancing Indebtedness Section shall only be considered an Investment in a Foreign Subsidiary and shall be permitted if it meets under this clause (f) only to the requirements extent such Investment is permitted under Section 11.3, (ii) any Guaranty Obligations with respect to Indebtedness permitted pursuant to clause (i) of this Section shall be subordinated to the definition same extent as the subordination of Refinancing Indebtednesssuch Indebtedness and (iii) Holdings shall not be permitted to incur any Guaranty Obligations with respect to Indebtedness permitted pursuant to Section 11.1(n);
(g) intercompany Indebtedness (i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect owed by any Non-Guarantor Subsidiary to the incurrence of any Credit Party in an aggregate principal amount not to exceed $15,000,000 at any time outstanding (provided that any Indebtedness owed by such Indebtedness on Non-Guarantor Subsidiary to any Credit Party pursuant to this clause (ii) shall be evidenced by a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower demand note in form and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered substance reasonably satisfactory to the Administrative Agent a certificate of its chief financial officer and shall be pledged and delivered (together with all collateral or treasurer other security securing such promissory note) to such effect setting forth in reasonable detail the computations necessary Administrative Agent pursuant to determine such compliancethe Security Documents), (iii) owed by any Credit Party to any Non-Guarantor Subsidiary in an aggregate principal amount not to exceed $30,000,000 at the any time of the incurrence of outstanding (provided, that such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent) and (iv) the documentation governing such Indebtedness contains customary market termsowed by any Non-Guarantor Subsidiary to any other Non-Guarantor Subsidiary;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(nh) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(i) unsecured Subordinated Indebtedness in an aggregate principal amount not to exceed $30,000,000 at any time outstanding;
(j) Indebtedness under performance and completion guaranties, performance bonds, surety bonds, release, appeal and similar bonds, statutory obligations or with respect to workers’ compensation claims, in each case incurred in the ordinary course of business, and reimbursement obligations in respect of any of the foregoing;
(k) Indebtedness incurred by Foreign Subsidiaries to third parties other than Holdings or any of its Subsidiaries in an aggregate principal amount not to exceed $25,000,000 at any time outstanding;
(l) Indebtedness incurred pursuant to the Senior Subordinated Notes Indenture in an aggregate principal amount not to exceed $500,000,000 at any time outstanding, and any refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is extinguished within five not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to the accrued but unpaid interest on such refinanced Indebtedness and any reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (5ii) Business Days the terms of incurrenceany such refinancings, refundings, renewals or extensions thereof, taken as a whole, are no less favorable to the Lenders or the Credit Parties and the Limited Guarantor Subsidiary, as applicable;
(m) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of the Borrower or any Subsidiary thereof pursuant to such agreements, in connection with Permitted Acquisitions or permitted Asset Dispositions of any business, assets or Subsidiary of the Borrower or any of its Subsidiaries;
(n) Indebtedness under the Foreign L/C Facility in an aggregate principal amount not to exceed $100,000,000 at any time outstanding; provided that only up to $50,000,000 of such Indebtedness may be recourse to Holdings, but shall not be secured by a Lien on any of the assets of Holdings;
(o) Indebtedness in support of that certain contract with the California Department of Forestry and Fire Protection (Proposal 7CA76884) in an aggregate principal amount not to exceed $10,000,000 at any time outstanding;
(p) Indebtedness consisting of loans by the Borrower to Holdings for purposes otherwise permitted pursuant to Section 11.6 to be distributed to Holdings;
(q) Indebtedness consisting of promissory notes issued by Holdings or any Subsidiary thereof to current or former officers, directors, consultants or employees (or their respective estates, spouses, former spouses or family members) of Holdings or any Subsidiary thereof to purchase or redeem Capital Stock of Holdings or any Subsidiary thereof to the extent permitted pursuant to Section 11.6(d)(iv); and
(qr) Indebtedness of a JV Subsidiary to Holdings, any other Credit Party or the Limited Guarantor Subsidiary, if applicable, and to the extent constituting Indebtednessother holders of Capital Stock of such JV Subsidiary, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets so long as the criteria of more than one percentage of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the aggregate amount of such Indebtedness to more than one of such clausesJV Subsidiary owed to such other holders of its Capital Stock does not exceed the percentage of the aggregate outstanding amount of the Capital Stock of such JV Subsidiary held by such other holders; provided, (iii) may elect in its sole discretion to apportion that any such Indebtedness between owed to Holdings, any other Credit Party or among any two the Limited Guarantor Subsidiary, if applicable, shall be evidenced by a demand promissory note in form and substance satisfactory to the Administrative Agent and shall be pledged and delivered (together with all collateral or more of other security securing such clauses, and (ivpromissory note) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets Administrative Agent pursuant to the requirements of the clause to which reallocated or reclassifiedSecurity Documents.
Appears in 1 contract
Limitations on Indebtedness. CreateThe Obligors will not, and will not permit any of their respective Subsidiaries to, directly or indirectly, create, incur, assume or suffer permit to exist any Indebtedness or any preferred Equity Interests, except:
(ai) Indebtedness created hereunder or under the Obligations Transaction Documents;
(excluding Hedging Obligations permitted ii) Indebtedness of a Loan Party (as defined in the Bank Credit Agreement) in respect of amounts outstanding (including all amounts due, contingently or otherwise, in respect of reimbursement obligations under letters of credit or similar instruments and all related reimbursement agreements) under the Bank Credit Documents, not in excess of the result of (A) $600,000,000 (subject to further increase of up to $300,000,000 pursuant to Section 10.1(b2.04 of the Bank Credit Agreement so long as no Event of Default is continuing at the time of any such increase), minus (B) the aggregate amount of any permanent reductions in the principal amount of the commitments under the revolving credit facility established thereunder and Indebtedness incurred in substitution, refinancing or replacement of such Indebtedness; provided that (x) the terms, covenants and restrictions in respect of such substitutions, refinancings and replacements are not more materially onerous than the existing terms, covenants and restrictions of such Indebtedness being substituted, refinanced or replaced, (y) the aggregate principal amount of the Indebtedness of the Loan Parties (as defined in the Bank Credit Agreement) under this clause (ii) shall not at any time exceed $900,000,000, and (z) the aggregate principal amount of all Indebtedness of Foreign Borrowers under this clause (ii) shall not at any time exceed the Foreign Borrower Sublimit (as defined in the Bank Credit Agreement);
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(ciii) Indebtedness existing on the Closing Effective Date and listed on set forth in Schedule 10.16D and extensions, renewals and replacements of any Refinancing such Indebtedness that do not increase the outstanding principal amount thereof (except by the amount of any accrued interest and premiums with respect to such Indebtedness and transaction fees, costs and expenses in respect connection with such extension, renewal or replacement thereof);
(div) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness one Credit Party or a Subsidiary of a Person existing at the time such Person became Credit Party to another Credit Party or Subsidiary of a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this SectionCredit Party; provided that any guarantee of Refinancing such Indebtedness (A) shall only not be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
prohibited by paragraph 6M and (iB) Indebtedness owed owing by any Credit Party to another any Subsidiary that is not a Credit Party;
(j) Indebtedness Party shall be subject to the provisions of the Borrower Subordination Agreement as Subordinated Debt (as defined in the Subordination Agreement) and each Credit Party or any Restricted other Subsidiary consisting of Qualified Trust Indebtedness;
(k) to whom such Indebtedness of the Borrower and its Restricted Subsidiaries pursuant is owed shall be party to the Senior Unsecured Notes, and any Refinancing Indebtedness Subordination Agreement as a Subordinated Creditor (as defined in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrowSubordination Agreement);
(lv) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000or a Subsidiary of a Credit Party incurred to finance the acquisition, (ii) such Indebtedness matures at least six (6) months after the later to occur construction or improvement of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtednessany fixed or capital assets, (iii) at the time of the incurrence of such including purchase money Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing Capitalized Lease Obligations and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) any Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (A) such Indebtedness is incurred prior to or within 180 days (and in the case of industrial revenue bonds, 360 days) after such acquisition or the completion of such construction or improvement and (B) the aggregate principal amount of Indebtedness permitted by this clause (v) shall not exceed $50,000,000 at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary after the date hereof other than as a result of a Division; provided that (A) such Indebtedness exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary and (B) after giving effect to such Person becoming a Subsidiary, the Obligors shall be in compliance with the covenants set forth in paragraphs 6K and 6L on a Pro Forma Basis;
(vii) [intentionally omitted];
(viii) [intentionally omitted];
(ix) Indebtedness in respect of Swap Agreements permitted under paragraph 6N;
(x) preferred stock of any Subsidiary issued on or prior to the Effective Date;
(xi) Indebtedness of, or preferred stock issued by, any Subsidiary to the Parent or any other Subsidiary and permitted under paragraph 6M;
(xii) contingent obligations in respect of customary indemnification and purchase price adjustment obligations incurred in connection with Dispositions of properties or assets or with purchases of properties or assets permitted to be acquired hereunder;
(pxiii) Guarantees in respect of any Indebtedness permitted pursuant to this paragraph 6D if such guaranteeing Person would be permitted to incur such Indebtedness under this paragraph 6D;
(xiv) obligations in respect of performance bonds and completion, guarantee, surety and similar bonds, in each case obtained in the ordinary course of business to support statutory and contractual obligations (other than Indebtedness) arising in the ordinary course of business;
(xv) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by of a bank or other financial institution of a check, draft or other similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such ;
(xvi) Indebtedness is extinguished within five arising from the endorsement of items for deposit or collection of commercial paper received in the ordinary course of business;
(5xvii) Business Days Indebtedness incurred in connection with the financing of incurrenceinsurance premiums; and
(qxviii) (A) other Indebtedness so long as both before and after giving effect to the incurrence of such Indebtedness, (1) no Default or Event of Default shall have occurred and shall be continuing and (2) the Obligors shall be in compliance with the covenants set forth in paragraphs 6K and 6L on a Pro Forma Basis, and (B) extensions, renewals and replacements of any such Indebtedness incurred pursuant to clause (A) that do not increase the outstanding principal amount thereof (except by the amount of any accrued interest and premiums with respect to such Indebtedness and transaction fees, costs and expenses in connection with such extension, renewal or replacement thereof); provided that, in the case of clauses (A) and (B) above, the covenants, representations and defaults governing such Indebtedness shall not be more restrictive (taken as a whole) than those applicable to the Notes hereunder, except to the extent constituting Indebtedness(1) this Agreement shall be modified to grant the Notes the benefit of such more restrictive provisions, liabilities in connection with property assessed clean energy financing or similar financing relating (2) applicable solely to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets periods after the criteria of more than one latest maturity date of the above clauseslatest maturing Notes hereunder outstanding at the time of incurrence or issuance of such refinancing Indebtedness or (3) as otherwise agreed by the Required Holders in their reasonable discretion. Notwithstanding anything to the contrary in this paragraph 6D, the Borrower aggregate outstanding principal amount of all Indebtedness of all Subsidiaries (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (iiother than Credit Parties) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses exceed $175,000,000 at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Lci Industries)
Limitations on Indebtedness. CreateThe Issuer shall not create, incur, assume incur or suffer to exist any Indebtedness except:except the following Indebtedness (collectively, "Permitted Indebtedness"):
(a) Indebtedness represented by the Obligations (excluding Hedging Obligations permitted pursuant Senior Secured Notes to Section 10.1(b))be issued on the Closing Date;
(b) Indebtedness incurred in connection with by the Issuer to finance Capital Expenditures to a Hedging Agreement with Project that are required by law or the terms of the Project Documents; provided, that:
(i) the Issuer shall have delivered a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory certificate to the Administrative Agent; provided Collateral Agent certifying that any counterparty that no Default or Event of Default has occurred and is continuing at the time such Indebtedness is proposed to be incurred or would result from the incurrence of such additional Indebtedness;
(ii) the Issuer and the Independent Engineer shall each have delivered a Lender shall be deemed satisfactory certificate to the Administrative AgentCollateral Agent certifying that the Capital Expenditures to be financed with such Indebtedness conform to such legal or Project Document requirements; and
(iii) either:
(A) the Issuer and the Independent Engineer shall each have delivered a certificate to the Collateral Agent certifying that after giving effect to the incurrence of such additional Indebtedness, the minimum projected Debt Service Coverage Ratio for each twelve-month period (each such period taken as a single accounting period) commencing on the Scheduled Payment Date immediately succeeding the date on which such additional Indebtedness is incurred through the Final Maturity Date (or, with respect to Indebtedness incurred within the twelve months immediately prior to the Final Maturity Date, for a period commencing on the first day of the month immediately following the month in which such incurrence of Indebtedness occurs and ending on the Final Maturity Date), will not be less than 1.40 to 1.0; or
(B) the Issuer shall have delivered to the Collateral Agent a letter from Fitch confirming that, after giving effect to the incurrence of such Indebtedness, there will be no downgrade of the then-applicable ratings of the Senior Secured Notes;
(c) Indebtedness existing on incurred by the Closing Date and listed on Schedule 10.1Issuer to finance discretionary Capital Expenditures with respect to a Project, and any Refinancing Indebtedness in respect thereof;provided, that:
(di) Indebtedness the Issuer shall have delivered a certificate to the Collateral Agent certifying that no Default or Event of the Borrower Default has occurred and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing is continuing at the time such Person became a Restricted Subsidiary Indebtedness is proposed to be incurred or assets were acquired would result from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition incurrence of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandingadditional Indebtedness;
(gii) Guaranty Obligations in favor of the Administrative Issuer and the Independent Engineer shall each have delivered a certificate to the Collateral Agent certifying that (1) the minimum projected Debt Service Coverage Ratio for each twelve-month period (each such period taken as a single accounting period) commencing on the benefit of Scheduled Payment Date immediately succeeding the Secured Parties;
date on which such additional Indebtedness is incurred through the Final Maturity Date (h) Guaranty Obligations or, with respect to Indebtedness permitted pursuant incurred within the twelve months immediately prior to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements Final Maturity Date, for a period commencing on the first day of the definition month immediately following the month in which such incurrence of Refinancing Indebtedness;Indebtedness occurs and ending on the Final Maturity Date) and (2) the average projected Debt Service Coverage Ratio for each twelve-month period (each such period taken as a single accounting period) commencing on the Scheduled Payment Date immediately succeeding the date on which such additional Indebtedness is incurred through the Final Maturity Date (or, with respect to Indebtedness incurred within the twelve months immediately prior to the Final Maturity Date, for a period commencing on the first day of the month immediately following the month in which such incurrence of Indebtedness occurs and ending on the Final Maturity Date), equal or exceed the projected Debt Service Coverage Ratio for the corresponding twelve-month periods, as the case may be, immediately prior to the incurrence of such additional Indebtedness and the financing of any such Capital Expenditures; and
(iiii) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant Issuer shall have delivered to the Senior Unsecured NotesCollateral Agent a letter from Fitch confirming that, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in giving effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day there will be no downgrade of the twelve month period ending on the last day then-applicable ratings of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market termsSenior Secured Notes;
(md) additional secured Indebtedness not otherwise permitted pursuant incurred by the Issuer to this Section in an aggregate amount outstanding finance Capital Expenditures, Major Maintenance Expenditures or working capital at the Projects not to exceed an aggregate principal amount equal to ten percent (10%) outstanding at any time of Consolidated Tangible Assets$10 million; so long as, determinedthe Issuer shall have obtained from Fitch a letter confirming that, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in giving effect at the time of the incurrence of such Indebtedness, (iii) at the time there will be no downgrade of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use then-applicable ratings of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)Senior Secured Notes;
(ne) Subordinated Debt; and
(f) Indebtedness incurred by the Borrower Issuer in order to refinance existing Indebtedness incurred pursuant to clause (b), (c) or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and(d) above, provided, further, that (1) such underlying obligation is not in respect of borrowed money;
(o) refinancing Indebtedness has an average life equal to or greater than the average life of the Borrower consisting Indebtedness being refinanced, (2) the aggregate amount of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with such refinancing Indebtedness does not exceed the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness principal amount of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument Indebtedness being refinanced and (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q3) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets that the criteria of more than one original incurrence of the above clauses, the Borrower (i) shall have the right refinanced Indebtedness was subject to determine in its sole discretion the clause certain conditions and requirements pursuant to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassificationthis Indenture, such refinancing Indebtedness meets the requirements shall comply with all of the clause conditions and requirements applicable to which reallocated or reclassifiedthe refinanced Indebtedness.
Appears in 1 contract
Sources: Indenture (Ormat Technologies, Inc.)
Limitations on Indebtedness. Create(a) The Obligors will not, incurand will not permit any of their respective Subsidiaries to, assume create, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(a1) Indebtedness evidenced by the Notes and a Subsidiary Guaranty;
(2) Indebtedness of the Obligors and of their respective Subsidiaries outstanding as of the Effective Date and described on SCHEDULE II hereto;
(3) Indebtedness issued and outstanding, including Contingent Obligations under letters of credit, under the Revolving Credit Agreement, as from time to time supplemented, amended, renewed or extended and including any replacement thereof; PROVIDED that such Indebtedness outstanding at any time for each Subsidiary shall not exceed the amounts set forth on SCHEDULE III or if less, the maximum amount as may be permitted under Exhibit G of the Revolving Credit Agreement as in effect from to time to time; PROVIDED, FURTHER, that any such supplement, amendment, renewal, extension or replacement does not (excluding Hedging Obligations i) increase the amount of Indebtedness outstanding thereunder, (ii) increase the interest rate or rates payable pursuant thereto, (iii) include any business or financial covenants not included in the Revolving Credit Agreement on the Effective Date or (iv) make any amendment or modification that cannot be so amended or modified by Bank of America in accordance with the terms of Section 5.19 or (v) otherwise materially and adversely affect the business, property, assets, operations, condition (financial or otherwise) or prospects of the Obligors and their respective Subsidiaries taken as whole AND PROVIDED FURTHER that after giving effect to any such supplement, amendment, renewal, extension or replacement, any financial institution which becomes a party thereto shall have agreed in writing to be bound by the terms of the Intercreditor Agreement;
(4) Indebtedness of MMI and ▇▇▇▇▇▇ evidenced by the Bank Guaranty and representing guaranties of obligations under or in connection with the Revolving Credit Agreement;
(5) Indebtedness of the Obligors and of their respective Subsidiaries secured by Liens permitted pursuant to Section 10.1(bby Sections 5.12(f), (g) and (h);
(b6) additional Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate principal amount not to exceed $100,000,000 at any one time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes 1,000,000;
(7) other Indebtedness of this Agreementa Subsidiary to MMI or to any other Subsidiaries which shall not exceed, if an item in each case at any one time outstanding $1,000,000 for MMI's fiscal year ending on or about December 31, 1998, $2,000,000 for Middleby's fiscal year ending on or about December 31, 1999 and $3,000,000 for MMI's fiscal year ending on or about December 31, 2000 and each fiscal year thereafter;
(8) liabilities created or arising as a result of Indebtedness meets Liens described in clauses (a) through (d) of Section 5.12 to the criteria of more than one extent that such liabilities are classified upon a balance sheet of the above clauses, Obligors and their Subsidiaries as liabilities of any such Person; PROVIDED that no such liability shall be created or arise in connection with the Borrower borrowing of money or in connection with the creation of Liens described in clauses (ie) shall have through (m) of Section 5.12;
(9) Indebtedness incurred by MMI in connection with the right Acquisitions permitted under Section 7.3(b) of the Revolving Credit Agreement only to determine in its sole discretion the clause to which extent that such Indebtedness is unsecured financing by a seller of product lines to MMI and the payment of principal amount of which is subordinated to the payment of the Notes;
(10) Indebtedness of MPC under an unsecured term loan; PROVIDED that the aggregate principal amount outstanding under such loan does not exceed $1,850,000; PROVIDED FURTHER, that such Indebtedness shall be allocatedrepaid in full prior to June 18, 1998;
(ii11) Indebtedness of MMI and ▇▇▇▇▇▇ evidenced by the Bank Guaranty, and Indebtedness of MMI or any Subsidiary, representing overdrafts, or the guaranty thereof; PROVIDED THAT the aggregate amount of all Indebtedness incurred pursuant to this Section 5.11(a)(11) together with all Indebtedness incurred under Section 5.11(a)(3) shall not be required to allocate exceed at any one time outstanding $20,000,000; and
(12) Indebtedness of MMI and ▇▇▇▇▇▇ evidenced by the Bank Guaranty, and Indebtedness of MMI or any Subsidiary, representing foreign exchange contracts, products or derivatives, or the guaranty thereof; PROVIDED that such contracts are entered into for hedging and not speculative purposes; PROVIDED FURTHER that the aggregate amount of such all Indebtedness incurred pursuant to more than one of such clauses, (iiithis Section 5.11(a)(12) may elect in its sole discretion to apportion such together with all Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.incurred under
Appears in 1 contract
Sources: Note Agreement (Middleby Corp)
Limitations on Indebtedness. Create, incur, assume or --------------------------- suffer to exist exist, directly or indirectly, any Indebtedness exceptother than:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Obligations;
(b) existing Indebtedness incurred in connection with a described as of the Closing Date on Part B to Schedule 6.1(t) hereto and not otherwise permitted pursuant to this Section --------------- ------- 10.1 or Section 10.2 (but no extensions, increases, renewals, refinancings or ---- ------------ modifications thereof);
(c) Indebtedness under any Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory acceptable to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of under the Borrower Agent Note and its Restricted Subsidiaries incurred in connection with Finance Leases;the Additional Note; and
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing so long as at the time such Person became a Restricted Subsidiary of incurrence thereof no Default or assets were acquired Event of Default has then occurred or is continuing or would be caused thereby, PVC may from such Person, time to time following the Closing Date issue debt Securities subordinate in right and time of payment to the extent such Indebtedness was not incurred in connection with or in contemplation ofObligations (the "Additional ---------- Subordinated Indebtedness"), such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Additional Subordinated ------------------------- -------- Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtednessis unsecured, (ii) the maturity of such Additional Subordinated Indebtedness is no earlier than May 31, 2005, (iii) such Additional Subordinated Indebtedness includes representations and warranties, covenants, events of default and other provisions that are not more restrictive or burdensome to PVC than any other Subordinated Indebtedness, (iv) the subordination provisions of such Additional Subordinated Indebtedness are no less favorable to the Lenders than the subordination provisions of any other Subordinated Indebtedness, (v) the mandatory redemption, retirement, sinking fund or payment provisions of such Additional Subordinated Indebtedness do not require redemption, repurchase or payment of any amount at any time prior to May 31, 2005, (vi) such Additional Subordinated Indebtedness is issued pursuant to documentation in form and substance satisfactory to the Administrative Agent and Required Lenders, (vii) Borrowers can demonstrate in form and substance satisfactory to Administrative Agent that, immediately after giving effect to the incurrence of any such Indebtedness Additional Subordinated Indebtedness, PVC and its Subsidiaries on a pro forma basisConsolidated basis shall have a Senior Leverage Ratio of not greater than 2:1, as if and (viii) Borrowers apply the Net Securities Proceeds of such incurrence of Additional Subordinated Indebtedness had occurred on to (X) redeem the first day Series C Preferred Stock in whole but not in part pursuant to the terms of the twelve month period ending on the last day PVC Series C Certificate of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing Designation and (ivY) prepay the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof Loans pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q2.2(b)(ii)(C) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000required thereby. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.---------------------
Appears in 1 contract
Sources: Credit Agreement (Planvista Corp)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) The Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, incur any Indebtedness; provided that the Obligations Borrower or any Subsidiary Guarantor may incur additional Indebtedness, including Acquired Indebtedness, in each case, if, after giving effect thereto, the Consolidated Interest Coverage Ratio would be at least 2.00 to 1.00 (excluding Hedging Obligations permitted pursuant to Section 10.1(bthe “Coverage Ratio Exception”));.
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to Notwithstanding Section 6.01(a), each of the Administrative Agent; provided that any counterparty that is a Lender following shall be deemed satisfactory to permitted (the Administrative Agent;“Permitted Indebtedness”):
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j1) Indebtedness of the Borrower or any Restricted Subsidiary consisting Guarantor under Credit Facilities in an aggregate amount not to exceed, when taken together with all other Indebtedness incurred pursuant to this clause (1) and then outstanding, the greater of Qualified Trust Indebtedness(a) $450.0 million and (b) the Borrowing Base as of the date of such incurrence;
(k2) the New Senior Notes issued on the Closing Date and the guarantees thereof and the notes issued in exchange therefor and the guarantees in respect thereof to be issued pursuant to the registration rights agreement related thereto;
(3) Indebtedness of the Borrower and its the Restricted Subsidiaries pursuant to the extent outstanding on the Closing Date and, to the extent such Indebtedness is in an amount in excess of $7,500,000, set forth on Schedule 6.01, including the Senior Unsecured NotesSecured Notes and the Existing Senior Notes (other than Indebtedness referred to in clauses (1) and (2) above, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence intended use of proceeds of the Loans);
(4) Indebtedness under Hedging Obligations of the Borrower or any Restricted Subsidiary not for the purpose of speculation;
(5) Indebtedness of the Borrower owed to a Restricted Subsidiary and Indebtedness of any Restricted Subsidiary owed to the Borrower or any other Restricted Subsidiary; provided, however, that upon any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or such Indebtedness on being owed to any Person other than the Borrower or a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarterRestricted Subsidiary, the Borrower and its or such Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m)Subsidiary, as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b)applicable, respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to incurred Indebtedness not permitted by this clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h5);
(n6) Indebtedness incurred by the Borrower or any in respect of its Restricted Subsidiariesbid, including Indebtedness represented by letters of credit performance, surety bonds and workers’ compensation claims, self-insurance obligations and bankers acceptances issued for the account of the Borrower or any Restricted SubsidiarySubsidiary in the ordinary course of business, in including guarantees or obligations of the Borrower or any Restricted Subsidiary with respect to letters of credit supporting such bid, performance, surety bonds and workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety obligations and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed moneybankers acceptances;
(o7) Purchase Money Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of by the Borrower or any Restricted Subsidiary Subsidiary, and Refinancing Indebtedness thereof, in an aggregate amount not to exceed, when taken together with all other Indebtedness incurred pursuant to this clause (7) and then outstanding, the greater of (a) $35.0 million and (b) 10% of Consolidated Net Tangible Assets at the time of incurrence;
(8) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, provided however, that such Indebtedness is extinguished within five (5) Business Days of incurrence; and;
(q9) to the extent constituting Indebtedness, liabilities Indebtedness arising in connection with property assessed clean energy financing endorsement of instruments for deposit in the ordinary course of business;
(10) Refinancing Indebtedness with respect to Indebtedness incurred pursuant to the Coverage Ratio Exception, clause (2), (3) (other than the Senior Secured Notes and the Existing Senior Notes), (7), (11)(B) or similar financing relating to energy efficiency(C) or (13)(B) of this Section 6.01(b) or this clause (10);
(A) Acquired Indebtedness of the Borrower or any Restricted Subsidiary, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financingRefinancing Indebtedness thereof, in an aggregate amount outstanding not to exceed exceed, when taken together with all other Indebtedness incurred pursuant to this clause (11)(A) and then outstanding, the greater of (x) $25,000,000. For all purposes 20.0 million and (y) 7.5% of Consolidated Net Tangible Assets at the time of incurrence, (B) Acquired Indebtedness of the Borrower or any Restricted Subsidiary assumed or acquired in connection with a transaction governed by, and effected in accordance with, Section 6.08 and (C) Acquired Indebtedness; provided, however, that, with respect to Acquired Indebtedness pursuant to this Agreementclause (C), if an item after giving effect to such acquisition or merger, consolidation or amalgamation, either (1) the Borrower would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio Exception or (2) the Consolidated Interest Coverage Ratio would be equal to or greater than immediately prior to such acquisition or merger, consolidation or amalgamation;
(12) Indemnification, adjustment of purchase price, earn-out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets of the Borrower or any Restricted Subsidiary or Equity Interests of a Restricted Subsidiary, other than guarantees of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among incurred by any two or more of such clauses, and (iv) may reallocate or reclassify Person acquiring all or any part portion of such business, assets or capital stock for the purpose of financing any such acquisition;
(13) (A) Indebtedness between or among any one or more of such clauses at any time Foreign Subsidiaries in an aggregate amount not to exceed, when taken together with all other Indebtedness incurred pursuant to this clause (13)(A) and from time to timethen outstanding, provided that, the greater of (x) $60.0 million and (y) 15.0% of Consolidated Net Tangible Assets at the time such reallocation of incurrence and (B) Indebtedness of Foreign Subsidiaries if, after giving effect thereto the Consolidated Interest Coverage Ratio (with the references to the Borrower and the Restricted Subsidiaries in the definitions used in the calculation thereof being to Foreign Subsidiaries (other than Unrestricted Subsidiaries)) of all Foreign Subsidiaries would be at least 2.00 to 1.00; provided, however, that, without limiting the foregoing, Indebtedness under this clause (13) may be incurred under any Credit Facility;
(14) Indebtedness of the Borrower or reclassificationany Restricted Subsidiary incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees, customers or joint ventures in an aggregate amount not to exceed, when taken together with all other Indebtedness incurred pursuant to this clause (14) and then outstanding, the greater of (x) $10.0 million and (y) 2.5% of Consolidated Net Tangible Assets at the time of incurrence;
(15) Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate amount not to exceed, when taken together with all other Indebtedness incurred pursuant to this clause (15) and then outstanding, the greater of (x) $75.0 million and (y) 20% of Consolidated Net Tangible Assets at the time of incurrence (it being understood that any Indebtedness incurred under this clause (15) shall cease to be deemed incurred or outstanding for purpose of this clause (15) but shall be deemed incurred for purposes of Section 6.01(a) from and after the date on which the Borrower or the Restricted Subsidiary, as the case may be, could have incurred such Indebtedness meets the requirements of the under Section 6.01(a) without reliance upon this clause to which reallocated or reclassified.(15));
Appears in 1 contract
Limitations on Indebtedness. CreateThe Obligors will not, and will not permit any of their respective Subsidiaries to, directly or indirectly, create, incur, assume or suffer permit to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1Indebtedness, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant any Subsidiary, to this Section; provided that issue any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;preferred stock, except:
(i) Indebtedness owed by any Credit Party to another Credit Partycreated hereunder or under the other Transaction Documents;
(jii) Indebtedness of a Loan Party (as defined in the Borrower Bank Credit Agreement) in respect of amounts outstanding (including all amounts due, contingently or any Restricted Subsidiary consisting otherwise, in respect of Qualified Trust Indebtedness;
(kreimbursement obligations under letters of credit or similar instruments and all related reimbursement agreements) Indebtedness under the Bank Credit Documents, not in excess of the Borrower and its Restricted Subsidiaries result of (A) $200,000,000 (subject to further increase of up to $125,000,000 pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any Section 2.06A of the Senior Unsecured Notes may be secured by the proceeds Bank Credit Agreement so long as no Event of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that Default is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect continuing at the time of any such increase), minus (B) the incurrence aggregate amount of any permanent reductions in the principal amount of the commitments under the revolving credit facility established thereunder and Indebtedness incurred in substitution, refinancing or replacement of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount terms, covenants and restrictions in respect of such secured substitutions, refinancings and replacements are not more materially onerous than the existing terms, covenants and restrictions of such Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000being substituted, refinanced or replaced and (ii) the aggregate principal amount of the Indebtedness of the Loan Parties (as defined in the Bank Credit Agreement) under this clause (ii) shall not at any time exceed $325,000,000;
(iii) Indebtedness existing on the Effective Date and set forth in Schedule 6D, including any refinancing, extension, renewal or refunding of any such Indebtedness matures at least six (6) months after in an amount not to exceed the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence amount so refinanced of such Indebtedness; provided that the terms, covenants and restrictions in respect of such refinancing, extension, renewal or refunding are not materially more onerous than the existing terms, covenants and restrictions of such Indebtedness;
(iiiiv) at Indebtedness incurred in connection with any renewal, extension, substitution, refinancing or replacement, in an amount not to exceed the time amount so renewed, extended, substituted, refinanced or replaced, of any outstanding Indebtedness otherwise permitted hereunder (excluding from this paragraph 6D(iv) the incurrence Indebtedness referred to in paragraph 6D(ii)); provided that the terms, covenants and restrictions in respect of such renewals, extensions, substitutions, refinancings or replacements are not more materially onerous than the existing terms, covenants and restrictions of such Indebtedness being renewed, extended, substituted, refinanced or replaced;
(v) Adjusted Hedging Exposure Amounts in connection with Hedging Agreements permitted under paragraph 6N not exceeding in the aggregate (x) $15,000,000 minus (y) the aggregate principal amount of Indebtedness outstanding pursuant to paragraph 6D(iv) incurred in order to renew, extend, substitute, refinance or replace Indebtedness incurred pursuant to this clause (v);
(vi) preferred stock of any Subsidiary issued on or prior to the Effective Date;
(vii) Indebtedness of, or preferred stock issued by, any Subsidiary to the Parent or any other Credit Party and after giving effect theretopermitted under paragraph 6M;
(viii) Indebtedness of one Credit Party or a Subsidiary of a Credit Party to another Credit Party or Subsidiary of a Credit Party; provided that (a) all of the Equity Interests of each such Credit Party or such Subsidiary (other than the Parent) shall be owned 100% (excluding directors’ qualifying shares) directly or indirectly by the Parent except in the case of Indebtedness which may be owing by non-Wholly-Owned Subsidiaries in an aggregate outstanding principal amount not to exceed (x) $10,000,000 minus (y) the aggregate principal amount of Indebtedness outstanding pursuant to paragraph 6D(iv) incurred in order to renew, no Default extend, substitute, refinance or Event of Default shall exist or be continuing replace Indebtedness incurred pursuant to this clause (a), (b) other than Indebtedness resulting from investments permitted under paragraph 6M pursuant to subclauses (b) and (ivc) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above of the definition of “Permitted Loans and Investments”, each of such Credit Parties or such Subsidiaries to or by whom such Indebtedness is owed, or who owns (directly or indirectly) any Equity Interests referred to in an aggregate amount greater than $150,000,000 and the Borrower preceding clause (a), shall provide notice have become a party to the Administrative Agent thereof pursuant Subsidiary Guaranty and/or to Section 7.4(h)the Pledge Agreement (or to all of them) to the extent required by paragraph 5K hereof, (c) such Indebtedness shall at all times be subject to the provisions of the Subordination Agreement as Subordinated Debt (as defined in the Subordination Agreement) and each Credit Party or other Subsidiary to whom such Indebtedness is owed shall be party to the Subordination Agreement as a Subordinated Creditor (as defined in the Subordination Agreement) and (d) in the case of any such Indebtedness owing by a Credit Party, the holder of such Indebtedness shall be a Credit Party;
(nix) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, contingent obligations in respect of workers’ compensation claimscustomary indemnification and purchase price adjustment obligations incurred in connection with Transfers of properties or assets or with purchases of properties or assets permitted hereunder;
(x) Guarantees in respect of any Indebtedness permitted pursuant to this paragraph 6D if such guaranteeing Person would be permitted to incur such Indebtedness under this paragraph 6D;
(xi) obligations in respect of performance bonds and completion, self-insurance obligations, performance, proposal, completionguarantee, surety and similar bonds bonds, in each case obtained in the ordinary course of business to support statutory and completion guarantees provided by the Borrower or its Restricted Subsidiaries contractual obligations (other than Indebtedness) arising in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(oxii) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by of a bank or other financial institution of a check, draft or other similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such ;
(xiii) Indebtedness is extinguished within five arising from the endorsement of items for deposit or collection of commercial paper received in the ordinary course of business;
(5xiv) Business Days Indebtedness incurred in connection with the financing of incurrenceinsurance premiums; and
(qxv) to other Indebtedness incurred by the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all Obligors or any part other Indebtedness or preferred stock of such Indebtedness between or among any one or more of such clauses at any time and from time to time, their respective Subsidiaries; provided that, at the time such reallocation or reclassificationof incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, Consolidated Indebtedness shall not exceed 55% of Total Capitalization of the Parent and its Subsidiaries and provided, further, that, for any Subsidiary of the Parent other than the Issuer, such Indebtedness meets and preferred stock together with the requirements aggregate amount of outstanding Indebtedness and the aggregate liquidation value of preferred stock of such Subsidiary previously incurred and outstanding under this paragraph 6D (other than (a) Indebtedness incurred under clauses (i), (ii), (iii), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xiii) and (xiv) of this paragraph 6D and (b) Indebtedness incurred under clause (iv) of this paragraph 6D to the extent that such Indebtedness renews, extends, substitutes, refinances or replaces Indebtedness described in the foregoing clause (a)), does not at any time exceed 25% of Consolidated Net Worth; provided, that, notwithstanding anything to the contrary set forth in the definition of Permitted Liens or this paragraph 6D, the Obligors will not at any time permit Priority Debt to exceed 15% of Consolidated Net Worth determined as of the clause to which reallocated or reclassifiedlast day of the most recently ended fiscal quarter of the Parent.
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (DREW INDUSTRIES Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative AgentAgreement; provided that if the Hedging Obligations pursuant to any counterparty that is a Lender shall such Hedging Agreement relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be deemed satisfactory incurred by the Loan Documents and (ii) the notional principal amount of such Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to the Administrative Agentwhich such Hedging Obligations relate;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.16.1(t), and any Refinancing Indebtedness in respect refinancings, refundings, renewals or extensions thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the principal amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect increased at the time of such refinancing, refunding, renewal or extension except by accrued but unpaid interest on the incurrence refinanced Indebtedness and an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) any refinancing, refunding, renewal or extension of such Indebtednessany Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders as, and no more restrictive on Holdings and its Subsidiaries than, the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (iiiB) in a principal amount not less than the principal amount outstanding at the time of the incurrence of such Indebtedness and after giving effect theretorefinancing, no Default refunding, renewal or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)extension;
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. CreateThe Company will not, incurand will not permit any of its Restricted Subsidiaries to, assume or suffer to exist incur any Indebtedness, except for the following Indebtedness except:(Permitted Indebtedness):
(a) Indebtedness outstanding on the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Issuance Date and identified in Schedule A attached hereto;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions Incurred pursuant to the Restructuring (including interest ratethe Notes) reasonably satisfactory other than any Notes issued pursuant to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentCash Offer;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Permitted Refinancing Indebtedness in respect thereofIndebtedness;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesSubordinated Indebtedness;
(e) purchase money Indebtedness Incurred in any year for purposes of financing Permitted Capital Expenditures or Regulatory Capital Expenditures in an aggregate principal amount not to exceed the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereofamount of Permitted Capital Expenditures that the Company is permitted to make under this Indenture during such year;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandingof Hedging Contracts;
(g) Guaranty Obligations Indebtedness with respect to letters of credit, bankers’ acceptances and similar obligations issued in favor the ordinary course of the Administrative Agent for the benefit business and not supporting Indebtedness, including performance bonds and letters of the Secured Partiescredit supporting performance bonds;
(h) Guaranty Obligations with respect Indebtedness of the Company or any of its Restricted Subsidiaries owed to the Company or any of its Restricted Subsidiaries so long as such Indebtedness permitted continues to be owed to the Company or a Restricted Subsidiary and which, if the obligor is the Company and such Indebtedness is owed to such Restricted Subsidiary, is subordinated in right of payment and priority to the Notes, pursuant to this Sectiona Subordination Agreement; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;and
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section Incurred for general corporate purposes in an aggregate principal amount outstanding not to exceed an amount equal to ten percent U.S. $50 million (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries equivalent in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(ocurrencies) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedoutstanding.
Appears in 1 contract
Sources: Indenture (Edenor)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(a) Indebtedness under the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Loan Documents;
(b) Indebtedness outstanding on the date hereof or incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory the Distribution on or prior to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to Distribution Time under the Administrative Agent;
(c) Indebtedness existing on the Closing Date and Bonds or otherwise listed on Schedule 10.1, 7.07 and any Refinancing Indebtedness in respect refinancings, refundings, renewals or extensions thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any Credit Party existing commitments unutilized thereunder and (ii) in the case of the Bonds or any other such Indebtedness of the Company, no Subsidiary of the Company shall become liable in respect of such Indebtedness;
(c) (i) Indebtedness (other than Guarantees) (A) of the Company to any of its Subsidiaries and (B) of any Subsidiary of the Company to the Company or any other such Subsidiary; and (ii) Guarantees of the Company in respect of Indebtedness otherwise permitted hereunder of any Subsidiary of the Company;
(d) obligations (contingent or otherwise) of the Company existing or arising under any Swap Contract; provided that (i) such obligations are (or were) entered into by the Company in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by the Company or any of its Subsidiaries, or changes in the value of securities issued by any such Person, and not exceed $250,000,000, for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and Company or any of its Subsidiaries incurred in the Initial Term Loan Maturity Date ordinary course of business as an account party in effect at the time respect of the incurrence (i) letters of such Indebtednesscredit, bank guarantees or similar instruments in an aggregate face amount not to exceed $25,000,000 or (iiiii) at the time with respect to any surety bonds, performance bonds, customs bonds, statutory, appeal or similar bonds, completion guarantees or other obligations of the incurrence a like nature;
(f) (i) Indebtedness of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing any Finance Subsidiary and (ivii) notwithstanding the Consolidated Total Leverage Ratio at such timeextension, a Springing Lien Event shall be deemed to have occurred upon the use renewal, replacement or refinancing of the $250,000,000 basket pursuant to any Indebtedness permitted under clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)extent such Indebtedness is at a Finance Subsidiary;
(ng) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower Company in the form of deferred purchase price of property, purchase price adjustments, earn-outs or any Restricted Subsidiaryother arrangements representing acquisition consideration incurred in connection with an acquisition permitted hereunder;
(h) Indebtedness consisting of the financing of insurance premiums or take or pay obligations contained in supply arrangements that do not constitute Guarantees, in respect of workers’ compensation claimseach case, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries incurred in the ordinary course of business;
(i) Indebtedness of any Person that becomes a Subsidiary of the Company after the Closing Date pursuant to a transaction permitted hereunder; provided that, (A) such Indebtedness was not incurred in anticipation of such acquisition, (B) no other Subsidiary (other than the acquired Subsidiaries) is an obligor with respect to such Indebtedness and (C) such Indebtedness is retired within thirty (30) days after the date such Subsidiary is acquired unless such Indebtedness is otherwise permitted by this Section 7.07; and
(j) other Indebtedness not otherwise permitted under this Section 7.07 unless an Event of Default shall have occurred and be continuing at the time of incurring such Indebtedness or would result therefrom; provided that the underlying obligation aggregate principal amount of Indebtedness of Subsidiaries not otherwise permitted under subsections (a) through (i) above (other than any Indebtedness incurred by any Designated Borrower under this Agreement), when added, without duplication, to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) secured Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of Company and any business or assets Subsidiary permitted to be acquired hereunder;
by Section 7.01(s) (pand not otherwise permitted under Section 7.01(a) through (r)) and any other Indebtedness of the Borrower or Company that is Guaranteed by any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a checkSubsidiary, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate exceed the amount of Permitted Priority Amount on any such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifieddate.
Appears in 1 contract
Sources: Credit Agreement (Fortive Corp)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Indebtedness, except:
(a) Indebtedness under the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Loan Documents;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing outstanding on the Closing Date and date hereof under the Bonds or otherwise listed on Schedule 10.1, 7.07 and any Refinancing Indebtedness in respect refinancings, refundings, renewals or extensions thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any Credit Party existing commitments unutilized thereunder and (ii) in the case of the Bonds or any other such Indebtedness of the Company, no Subsidiary of the Company shall become liable in respect of such Indebtedness;
(i) Indebtedness (other than Guarantees) (A) of the Company to any of its Subsidiaries and (B) of any Subsidiary of the Company to the Company or any other such Subsidiary; and (ii) Guarantees of the Company in respect of Indebtedness otherwise permitted hereunder of any Subsidiary of the Company;
(d) obligations (contingent or otherwise) of the Company existing or arising under any Swap Contract; provided that (i) such obligations are (or were) entered into by the Company in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by the Company or any of its Subsidiaries, or changes in the value of securities issued by any such Person, and not exceed $250,000,000, for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(e) Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and Company or any of its Subsidiaries incurred in the Initial Term Loan Maturity Date ordinary course of business as an account party in effect at the time respect of the incurrence (i) letters of such Indebtednesscredit, bank guarantees or similar instruments in an aggregate face amount not to exceed $25,000,000 or (iiiii) at the time with respect to any surety bonds, performance bonds, customs bonds, statutory, appeal or similar bonds, completion guarantees or other obligations of the incurrence a like nature;
(i) Indebtedness of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing any Finance Subsidiary and (ivii) notwithstanding the Consolidated Total Leverage Ratio at such timeextension, a Springing Lien Event shall be deemed to have occurred upon the use renewal, replacement or refinancing of the $250,000,000 basket pursuant to any Indebtedness permitted under clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)extent such Indebtedness is at a Finance Subsidiary;
(ng) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower Company in the form of deferred purchase price of property, purchase price adjustments, earn-outs or any Restricted Subsidiaryother arrangements representing acquisition consideration incurred in connection with an acquisition permitted hereunder;
(h) Indebtedness consisting of the financing of insurance premiums or take or pay obligations contained in supply arrangements that do not constitute Guarantees, in respect of workers’ compensation claimseach case, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries incurred in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(oi) Indebtedness of any Person that becomes a Subsidiary of the Borrower consisting Company after the Closing Date pursuant to a transaction permitted hereunder; provided that, (A) such Indebtedness was not incurred in anticipation of customary indemnificationsuch acquisition, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection (B) no other Subsidiary (other than the acquired Subsidiaries) is an obligor with respect to such Indebtedness and (C) such Indebtedness is retired within thirty (30) days after the acquisition of any business or assets date such Subsidiary is acquired unless such Indebtedness is otherwise permitted to be acquired hereunderby this Section 7.07;
(pj) Indebtedness of incurred from time to time under the Borrower 2022 Credit Agreement and the Term Loan Credit Agreements; provided that, with respect to any refinancings, refundings, replacements, renewals or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a checkextensions thereof, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one is not increased at the time of such clausesrefinancing, (iii) may elect in its sole discretion refunding, replacement, renewal or extension except by an amount equal to apportion such Indebtedness between a reasonable premium or among any two or more of such clausesother reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(ivk) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and incurred by the Company from time to timetime pursuant to any commercial paper supported by the 2022 Credit Agreement;
(l) Indebtedness of the Company incurred pursuant to the 3.15% Senior Unsecured Notes due 2026 and the 4.30% Senior Unsecured Notes due 2046, provided that, together with the associated Guarantees thereof by any Subsidiary; and
(m) other Indebtedness not otherwise permitted under this Section 7.07 unless an Event of Default shall have occurred and be continuing at the time such reallocation or reclassification, of incurring such Indebtedness meets or would result therefrom; provided that the requirements aggregate principal amount of Indebtedness of Subsidiaries not otherwise permitted under subsections (a) through (l) above, when added, without duplication, to secured Indebtedness of the clause to which reallocated Company and any Subsidiary permitted by Section 7.01(s) (and not otherwise permitted under Section 7.01(a) through (r)) and any other Indebtedness of the Company that is Guaranteed by any Subsidiary (other than any Guarantees permitted by subsections (j) or reclassified(l) above), shall not exceed the Permitted Priority Amount on any such date.
Appears in 1 contract
Limitations on Indebtedness. CreateDirectly or indirectly create, incur, assume or suffer otherwise become directly or indirectly liable with respect to exist any Indebtedness exceptexcept for the following:
(a) the Obligations incurrence under Credit Facilities by the Parent Guarantor or any of its Restricted Subsidiaries of Indebtedness and letters of credit and bankers’ acceptances thereunder in an aggregate principal amount under this clause (excluding Hedging Obligations permitted pursuant a) (with letters of credit being deemed to Section 10.1(b))have a principal amount equal to the maximum potential liability of the Parent Guarantor and its Restricted Subsidiaries thereunder) not to exceed $375,000,000 outstanding at any one time;
(b) Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries incurred in connection with a Hedging pursuant to this Agreement with a counterparty and upon terms and conditions the other Loan Documents (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentIncremental Facility, Extension or Credit Agreement Refinancing Indebtedness);
(c) Unsecured Indebtedness existing on of the Closing Date and listed on Schedule 10.1, and Parent Guarantor or any Refinancing Indebtedness in respect thereofof its Restricted Subsidiaries;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to other than Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and through (b)c) above) existing on the Closing Date, respectivelytogether with any renewal, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default extension, refinancing or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket refunding pursuant to clause (i) above below;
(e) [reserved];
(f) Guarantee Obligations incurred by:
(i) the Parent Guarantor or any of its Restricted Subsidiaries in an aggregate amount greater than $150,000,000 respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guarantee Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and the Borrower (m) shall provide notice be permitted only to the Administrative Agent thereof pursuant extent that such Guarantee Obligations are incurred by a Guarantor or an Affiliate Guarantor;
(ii) the Parent Guarantor or any of its Restricted Subsidiaries in respect of lease obligations of Non-Loan Parties (to Section 7.4(hthe extent that such lease obligations constitute Indebtedness);
(niii) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(iv) the Parent Guarantor or any of its Restricted Subsidiaries in respect of Indebtedness of any Person; provided that the aggregate amount at any time outstanding of such Guarantee Obligations incurred pursuant to this clause (iv), when aggregated with the amount of all other Guarantee Obligations incurred and outstanding pursuant to this clause (iv) and all Indebtedness incurred by and outstanding pursuant to clause (w) of this Subsection 8.13, shall not exceed the greater of (x) $150,000,000 and (y) the amount equal to 5.0% of Consolidated Total Assets at the time of such Guarantee Obligations being incurred;
(v) the Parent Borrower or any of its Restricted SubsidiariesSubsidiaries in connection with sales or other dispositions permitted under Subsection 8.5, including Indebtedness represented by letters indemnification obligations with respect to leases, and guarantees of credit collectability in respect of accounts receivable or notes receivable for up to face value;
(vi) the Parent Guarantor or any of its Restricted Subsidiaries consisting of accommodation guarantees for the account benefit of trade creditors of the Parent Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that ;
(vii) the underlying obligation to perform is that of the Borrower Parent Guarantor or one any of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed moneyInvestments expressly permitted pursuant to clause (c), (h), (i) or (s) of the definition of “Permitted Investments”;
(viii) [reserved];
(ix) the Parent Guarantor or any of its Restricted Subsidiaries in respect of reimbursement obligations in respect of any letters of credit permitted under this Agreement;
(x) the Parent Guarantor or any of its Restricted Subsidiaries in respect of performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of credit, bankers’ acceptances or similar instruments or obligations, all in, or relating to liabilities or obligations incurred in, the ordinary course of business;
(xi) the Parent Guarantor or any of its Restricted Subsidiaries in respect of Indebtedness or other obligations of a Person in connection with a joint venture or similar arrangement in respect of which the aggregate outstanding amount of all such Indebtedness, together with the aggregate outstanding amount of Investments permitted pursuant to clause (n) of the definition of “Permitted Investments”, does not exceed the greater of $90,000,000 and 3.0% of Consolidated Total Assets; and
(xii) the guarantee by the Parent Guarantor or any of its Restricted Subsidiaries of Indebtedness and cash management pooling obligations and arrangements of the Parent Guarantor or a Restricted Subsidiary of the Parent Guarantor (treating the EMEA JV and any other Permitted Joint Venture as Restricted Subsidiaries for this purpose); provided that any such guarantee (other than a guarantee of cash management pooling obligations and arrangements) by the Parent Guarantor or any of its Restricted Subsidiaries in respect of a Permitted Joint Venture that does not exist on the Closing Date shall not exceed the amount set forth in clause (aa) of the definition of “Permitted Investments”) that was permitted to be incurred by another provision of this covenant (including the first paragraph hereof); provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Senior Secured Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guarantee Obligations shall be subordinated and the Liens securing the corresponding Guarantee Obligations shall be senior or subordinate to substantially the same extent;
(g) Purchase Money Obligations and Capital Lease Obligations, and other Indebtedness incurred by the Parent Guarantor or any of its Restricted Subsidiaries to finance or refinance the acquisition, leasing, construction or improvement of fixed assets or other property; provided, however, that the aggregate principal amount of any such Purchase Money Obligations incurred to finance the acquisition of Capital Stock of any Person at any time outstanding pursuant to this clause (g) shall not exceed an amount equal to the greater of (x) $150,000,000 and (y) 5.0% of Consolidated Total Assets;
(h) [reserved];
(i) renewals, extensions, refinancings and refundings of Indebtedness (in whole or in part) permitted by:
(i) clause (d) or (g) above or this clause (i)(i) provided, however, that (A) any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than the principal amount (or accreted value, if applicable) of such Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees, underwriting discounts and other costs and expenses incurred in connection with such refinanced Indebtedness) and (B) such Indebtedness has a weighted average life to maturity no shorter than the remaining weighted average life to maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a) or (m) hereof or this clause (i)(ii); provided, however, that (A) any such renewal, extension, refinancing or refunding is in an aggregate principal amount (or, if issued with original issue discount, the accreted value) not greater than the principal amount (or accreted value, if applicable) of such Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees, underwriting discounts and other costs and expenses, incurred in connection with such refinanced Indebtedness), (B) with respect to Indebtedness originally incurred under clause (a) or (m), such Indebtedness has a Stated Maturity date that is (i) at least 91 days after the Termination Date or (ii) in respect of Indebtedness with a Stated Maturity earlier than 91 days after the Termination Date, not earlier than the Stated Maturity date of the Indebtedness that is renewed, extended, refinanced or refunded, (C) if secured by any Collateral, such Indebtedness shall be subject to the terms of an Intercreditor Agreement, and (D) such renewed, extended, refinanced or refunded Indebtedness shall not include Indebtedness of a Restricted Subsidiary that is not a Loan Party that refinances Indebtedness of a Loan Party that could not have been initially incurred by such Restricted Subsidiary pursuant to this Subsection 8.13;
(j) Indebtedness of the Parent Guarantor or any Restricted Subsidiary (treating the EMEA JV and any other Permitted Joint Venture as Restricted Subsidiaries for this purpose) to the Parent or the Parent Guarantor or any of its Subsidiaries (treating the EMEA JV and any other Permitted Joint Venture as Subsidiaries for this purpose) to the extent that the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) Indebtedness incurred under any agreement pursuant to which a Person provides cash management services or similar financial accommodations to the Parent Guarantor or any of its Restricted Subsidiaries (including any Cash Management Arrangements);
(l) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement;
(m) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition or any other acquisition not prohibited by this Agreement so long as: (i) the Parent Guarantor would be in compliance, on a pro forma basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 recomputed as of the last day of the most recently ended Fiscal Quarter of the Parent Guarantor for which financial statements are available, (it being understood that, as a condition precedent to the effectiveness of any such incurrence or assumption, the Parent Guarantor shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (ii) before and after giving effect thereto, no Specified Default or Event of Default known to the Parent Borrower has occurred and is continuing, and (iii) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity or amortization rate greater than 1.0% per annum prior to the date that is 91 days after the Termination Date (other than (x) mandatory prepayments with proceeds of and exchanges for refinancing Indebtedness in respect thereof permitted hereunder or (y) an earlier maturity date and/or higher amortization rate for customary bridge financings, which, subject to customary conditions, would either be automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or an amortization rate greater than 1.0% per annum prior to the date that is 91 days after the Termination Date and other mandatory prepayments with proceeds of and exchanges for refinancing Indebtedness in respect thereof permitted hereunder); it being understood that, in the event that any such Indebtedness incurred under this Subsection 8.13(m) is incurred in good faith to finance the purchase price of any such acquisition in advance of the closing of such acquisition, and such closing shall thereafter not occur and such Indebtedness (or an equal principal amount of other Indebtedness) is redeemed, repaid or otherwise retired promptly after the Parent Guarantor determines that such transaction has been abandoned, such Indebtedness shall be deemed to comply with this Subsection 8.13(m);
(n) Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(o) Indebtedness (A) arising from the honoring of the Borrower a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence; or (B) consisting of customary indemnificationindemnities, deferred obligations in respect of earnouts or other purchase price adjustments adjustments, or similar obligations, in each casecreated, incurred or assumed in connection with the acquisition or disposition of any business business, assets or assets permitted to be acquired hereunderPerson;
(p) Indebtedness of the Borrower Parent Guarantor or any of its Restricted Subsidiaries in respect of Capital Lease Obligations which have been funded solely by Investments of the Parent Guarantor and its Restricted Subsidiaries permitted under clause (o) of the definition of “Permitted Investments”;
(q) Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries arising in connection with industrial development or revenue bonds or similar obligations secured by property or assets leased to and operated by the Parent Guarantor or such Restricted Subsidiary arising from that were issued in connection with the honoring financing or refinancing of such property or assets, provided, that the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $25,000,000;
(r) Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries in respect of obligations evidenced by a bank or other financial institution of a checkbonds, draft debentures, notes or similar instrument instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(except s) accretion of the principal amount of Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries otherwise permitted hereunder issued at any original issue discount;
(t) Indebtedness of the Parent Guarantor and its Restricted Subsidiaries under Hedging Agreements;
(u) Indebtedness of the Parent Guarantor or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(v) [reserved];
(w) other Indebtedness of the case Parent Guarantor or any of daylight overdraftsits Restricted Subsidiaries; provided that the aggregate amount outstanding at any time of such Indebtedness incurred or assumed pursuant to this clause (w), when aggregated with all other Indebtedness incurred or assumed and outstanding pursuant to this clause (w) drawn against insufficient funds and all Guarantee Obligations incurred and outstanding pursuant to Subsection 8.13(f)(iv), shall not exceed the greater of (i) $150,000,000 and (ii) the amount equal to 5.0% of the Consolidated Total Assets at the time of incurrence of such Indebtedness;
(x) Indebtedness in respect of performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations, letters of credit, bankers’ acceptances or similar instruments or obligations, and take-or-pay obligations under supply arrangements, all provided in, or relating to liabilities or obligations incurred in, the ordinary course of business, provided that including those issued to government entities in connection with self-insurance under applicable workers’ compensation statutes;
(y) the incurrence by the Parent Guarantor or any of its Restricted Subsidiaries of intercompany Indebtedness and cash management pooling obligations and arrangements between or among the Parent Guarantor and any of its Restricted Subsidiaries (treating the EMEA JV and any other Permitted Joint Venture as Restricted Subsidiaries for this purpose); provided, however, that:
(A) if the Company or any Loan Party is the obligor on such Indebtedness (other than cash management pooling obligations and arrangements and Indebtedness owed to the EMEA JV and any other Permitted Joint Venture) and the payee is extinguished within five (5) Business Days not the Company or a Loan Party, such Indebtedness must be expressly subordinated to the prior payment in full in cash of incurrenceall Obligations then due with respect to the Facility under the Loan Documents and the Guarantees given under the Loan Documents; and
(qB) (x) any subsequent issuance or transfer of Capital Stock that results in any such Indebtedness being held by a Person other than the Parent Guarantor or a Restricted Subsidiary of the Parent Guarantor and (y) any sale or other transfer of any such Indebtedness to a Person that is not either the extent constituting IndebtednessParent Guarantor or a Restricted Subsidiary of the Parent Guarantor, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financingwill be deemed, in each case, to constitute an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount incurrence of such Indebtedness to more than one of by the Parent Guarantor or such clausesRestricted Subsidiary, as the case may be, that was not permitted by this clause (iiiy);
(z) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.I
Appears in 1 contract
Sources: Credit Agreement (CHC Group Ltd.)
Limitations on Indebtedness. Create(a) The Borrower will not, incurand will not permit its Subsidiaries to, assume and the Company will not, and will not permit its Subsidiaries to, create, issue, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(i) Indebtedness evidenced by the Notes;
(ii) unsecured Indebtedness incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) so long as no principal of such Indebtedness is scheduled to mature prior to the stated maturity of the Notes;
(iii) (a) secured or unsecured purchase money Indebtedness (including Capital Leases) (such Indebtedness being referred to herein as “Permitted Purchase Money Indebtedness”) incurred by the Obligations Company or any Domestic Subsidiary of the Company other than the Borrower (excluding Hedging Obligations permitted or any of the Borrower’s Subsidiaries) and (b) secured Indebtedness (such Indebtedness being referred to herein as “Permitted Receivables/Inventory Indebtedness”) incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s direct Subsidiaries) secured by Accounts and Inventory, if all such Permitted Purchase Money Indebtedness and Permitted Receivables/Inventory Indebtedness does not exceed, in the aggregate at any time outstanding, the lesser of (1) $15,000,000 and (2) 75% of Inventories and Receivables, as determined at such time using the consolidated balance sheet of the Company and its consolidated Subsidiaries for the most recently completed fiscal quarter of the Company;
(iv) secured Indebtedness (hereinafter referred to as the “Permitted Other Secured Indebtedness”) created, issued, assumed, guaranteed or otherwise incurred by the Company or any Domestic Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) so long as no principal of [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Section 10.1(bRule 24B-2 of the Securities Exchange Act of 1934, as amended. such Indebtedness is scheduled to mature prior to the stated maturity of the Notes; provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, the ratio of (i) Consolidated Secured Indebtedness at such time to (ii) Consolidated EBITDA, as measured for the then trailing four most recently completed fiscal quarters of the Company, shall not be in excess of 3.0 to 1.0;
(v) Indebtedness (hereinafter referred to as the “Permitted Acquisition Indebtedness”) created, issued, assumed, guaranteed or otherwise incurred by the Company or any Subsidiary of the Company other than the Borrower (or any of the Borrower’s Subsidiaries) used to finance (or assumed in connection with) the acquisition of a pharmaceutical or biotechnology product (including by way of the acquisition of stock or other similar ownership interests of the Person owning the target product)); provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof, the aggregate outstanding principal amount of such Indebtedness permitted by this clause (v) shall not exceed three times the lower of:
a. the annualized EBITDA of the Person or product being acquired as measured for the then most recent 12 months ended; and
b. the lowest projected annualized EBITDA for the Person or product being acquired, as the case may be, for any of the three years following the acquisition as determined by the Company in good faith on a pro forma basis and presented to the Company’s board of directors in connection with the approval of such acquisition;
(vi) Indebtedness represented by currency swaps or letters of credit entered into or issued, as the case may be, in the ordinary course of business of a Credit Party; and
(vii) Any amounts owing under the Settlement Agreements.
(b) The renewal, extension, increase or refunding of any Indebtedness originally permitted to be issued, incurred or outstanding pursuant to Section 10.1(a) shall constitute the issuance of additional Indebtedness which is, in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory turn, subject to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to limitations of the Administrative Agent;applicable provisions of this Section 10.1.
(c) Any Person that becomes a Subsidiary after the date hereof shall for all purposes of this Section 10.1 be deemed to have created, assumed or incurred at the time it becomes a Subsidiary all Indebtedness of such Person existing on immediately after it becomes a Subsidiary which Indebtedness, in turn, shall be subject to the Closing Date limitations of this Section 10.1 including, for the avoidance of doubt, any exceptions set forth herein. [ * ] = Certain confidential information contained in this document, marked by brackets, has been omitted and listed on Schedule 10.1filed separately with the Securities and Exchange Commission pursuant to Rule 24B-2 of the Securities Exchange Act of 1934, and any Refinancing Indebtedness in respect thereof;as amended.
(d) Indebtedness Each Credit Party, the Collateral Agent and each Purchaser acknowledges and agrees that, notwithstanding the incurrence or assumption of any of the Borrower and its Restricted Subsidiaries Indebtedness permitted to be incurred in connection with Finance Leases;
(e) purchase money Indebtedness of or assumed pursuant to Section 10.1(a), the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, Liens granted to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Collateral Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee holders of Refinancing Indebtedness shall only be permitted if it meets Notes as collateral security for the requirements payment of the definition of Refinancing Indebtedness;
Obligations (iincluding, without limitation, the Liens on the Collateral provided for in Section 3 hereof) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of shall remain in place as valid and enforceable Liens; provided, however, that the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of Purchasers and the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured NotesCollateral Agent hereby agree that, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time case of the incurrence or assumption of such any Permitted Purchase Money Indebtedness, (ii) after giving effect to any Permitted Receivables/Inventory Indebtedness or any Permitted Acquisition Indebtedness, if requested by the incurrence of any Company, the Collateral Agent shall agree, in a writing that is in form and substance reasonably acceptable thereto, with the applicable creditor or creditors holding such Permitted Purchase Money Indebtedness, such Permitted Receivables/Inventory Indebtedness on a pro forma basisor such Permitted Acquisition Indebtedness, as if such incurrence of Indebtedness had occurred the case may be, to subordinate any Liens which the Collateral Agent has or holds on the first day assets being acquired or financed in favor of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered Liens expressly permitted to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(mincurred under Sections 10.3(a)(i), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a10.3(a)(ii) and (b10.3(c), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedacquisition.
Appears in 1 contract
Sources: Senior Secured Note and Warrant Purchase Agreement (Jazz Pharmaceuticals Inc)
Limitations on Indebtedness. CreateThe Company will not, incurand will not permit any of its Restricted Subsidiaries to, assume Incur any Indebtedness; provided that the Company or suffer any Restricted Subsidiary may Incur Indebtedness if, on the date of the Incurrence, after giving effect to exist any the Incurrence and the receipt and application of the proceeds therefrom, no Default has occurred and is continuing and the Leverage Ratio is not greater than 3.75 or less than zero and the Interest Expense Coverage Ratio is not less than 2.0. Notwithstanding the foregoing, the Company and its Restricted Subsidiaries may Incur the following Indebtedness except:if, on the date of the Incurrence, after giving effect to the Incurrence and the receipt and application of the proceeds therefrom, no Default has occurred and is continuing (Permitted Indebtedness):
(a) Indebtedness outstanding on the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Issuance Date, including any Notes issued on the Issuance Date;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentPermitted Refinancing Indebtedness;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereofSubordinated Indebtedness;
(d) Indebtedness Incurred for purposes of, and substantially all of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leasesproceeds of which are applied to, financing of Regulatory Capital Expenditures;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereofof Hedging Contracts;
(f) Indebtedness with respect to letters of a Person existing at credit, bankers’ acceptances and similar obligations issued in the time such Person became a Restricted Subsidiary or assets were acquired from such Personordinary course of business and not supporting Indebtedness, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition including performance bonds and letters of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandingcredit supporting performance bonds;
(g) Guaranty Obligations in favor Indebtedness of the Administrative Agent for Company or any of its Restricted Subsidiaries owed to the benefit Company or any of its Restricted Subsidiaries so long as such Indebtedness continues to be owed to the Secured Parties;Company or a Restricted Subsidiary and which, if the obligor is the Company and such Indebtedness is owed to such Restricted Subsidiary, is subordinated in right of payment and priority to the Notes, pursuant to a Subordination Agreement
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Sectionunder any one or more Permitted Receivables Financings, the combined aggregate principal amount of which does not exceed U.S. $35 million (or its equivalent in other currencies) at any time Outstanding; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;and
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section Incurred for general corporate purposes in an aggregate principal amount outstanding not to exceed an amount equal to ten percent U.S. $60 million (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries equivalent in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(ocurrencies) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedOutstanding.
Appears in 1 contract
Sources: Indenture (Edenor)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b)clause (e) below);
(b) the Senior Secured Notes in an aggregate principal amount not to exceed the Second Priority Debt Cap;
(c) Indebtedness in respect of letters of credit (that do not constitute Letters of Credit hereunder) issued by a financial institution or institutions, that are collateralized with cash or Cash Equivalents in an amount at least equal to (but not exceeding 105% of) the aggregate stated amount of such letters of credit (“Permitted LCs”);
(d) Indebtedness (i) not secured by a Lien, if immediately after incurring such Indebtedness, the Leverage Ratio is less than 3.00 to 1.00, and (ii) secured by a Lien, if immediately after incurring such Indebtedness, (A) the Leverage Ratio is less than 3.00 to 1.00 and (B) either such Indebtedness (x) constitutes additional Indebtedness under the Senior Secured Notes Indenture or (y) is acquired Indebtedness pursuant to a Permitted Acquisition;
(e) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(cf) Indebtedness existing on the Closing Date and not otherwise permitted under this Section and listed on Schedule 10.19.1, and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness in respect thereof;
(d) Indebtedness is not increased at the time of the Borrower such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and its Restricted Subsidiaries incurred fees and expenses reasonably incurred, in connection with Finance Leases;
such refinancing and by an amount equal to any existing commitments unutilized thereunder and (eii) purchase money any refinancing, refunding, renewal or extension of any Subordinated CREDIT AGREEMENT AMONG CIT FINANCE LLC, THE LENDERS, BROADVIEW NETWORKS HOLDINGS, AND CERTAIN SUBSIDIARIES Indebtedness of shall be (A) on subordination terms at least as favorable to the Borrower Lenders, (B) no more restrictive on the Credit Parties than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and its Restricted Subsidiaries, and any Refinancing Indebtedness (C) in respect thereof;
(f) Indebtedness of a Person existing an amount not less than the amount outstanding at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofrefinancing, in an aggregate amount not to exceed $100,000,000 at any time outstandingrefunding, renewal or extension;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to clauses (a) through (d) and (j) through (l) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Intercompany Indebtedness owed by Holdings or any Credit Party Subsidiary to another Credit PartyHoldings or any Subsidiary; provided, that (i) no Event of Default has occurred and is continuing, or would result therefrom, and (ii) all such extensions of credit shall be documented in the form of a subordinated promissory note and each such note shall be delivered, with such appropriate endorsement or other collateral assignment documents to the Administrative Agent as Collateral in accordance with the Security Documents and (iii) if such Indebtedness is incurred by a Subsidiary that is not a Borrower or a Guarantor and owed to a Borrower or a Guarantor, shall not exceed $1,000,000;
(j) Indebtedness of Holdings and its Subsidiaries in respect of Capital Leases and Purchase Money Indebtedness, in an aggregate principal amount not to exceed $10,000,000 at any time outstanding; provided that at the Borrower time such Indebtedness is incurred no Default or any Restricted Subsidiary consisting Event of Qualified Trust IndebtednessDefault has occurred and is continuing or would result therefrom;
(k) Indebtedness of the Borrower Holdings and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);performance bonds; and
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower Holdings and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft draft, or similar instrument (except in the case of daylight overdrafts) inadvertently drawn against insufficient funds by Holdings or any Subsidiary in the ordinary course of business, provided that business against insufficient funds so long as such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy promptly repaid and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding does not to exceed $25,000,000. For all purposes of this Agreement250,000; provided, if an item of that no agreement or instrument with respect to Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is permitted to be allocatedincurred by this Section shall restrict, limit or otherwise encumber (iiby covenant or otherwise) shall not be required the ability of any Credit Party to allocate the amount of such Indebtedness make any payment to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all Holdings or any part of such Indebtedness between its Subsidiaries (in the form of dividends, intercompany advances or among any one or more otherwise) for the purpose of such clauses at any time and from time enabling the Borrowers to time, provided that, at pay the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Obligations;
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Prior Closing Date and listed on Schedule 10.16.1(l), and the renewal, refinancing, refunding, extension and replacement (but not the increase in the aggregate principal amount) thereof; provided that any Refinancing Indebtedness refinancing, refunding, extension or replacement of any Senior Unsecured Notes shall also be subject to the satisfaction of the requirements set forth in respect thereofSection 10.1(k);
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Capital Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness the renewal, refinancing, refunding, extension and replacement (but not the increase in respect the aggregate principal amount) thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofassets, in an aggregate amount not to exceed $100,000,000 in the aggregate at any time outstandingoutstanding $100,000,000, and any refinancings, refundings, renewals or extensions thereof; provided that, any (i) such refinancings, refundings, renewals or extensions do not increase the principal amount thereof, (ii) such refinancings, refundings, renewals or extensions are issued on terms and conditions reasonably satisfactory to the Administrative Agent and (iii) no Default or Event of Default exists and is continuing at the time of consummation thereof (both before and giving effect thereto);
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to each of the Senior Unsecured Notes, and and, in each case, any refinancings, refundings, renewals, extensions or exchanges thereof (“Refinancing Indebtedness in respect thereof Indebtedness”); provided that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of i) such Refinancing Indebtedness if is an original aggregate principal amount not greater than the aggregate principal amount of, and unpaid interest on, the Indebtedness being refinanced, refunded, renewed, extended or exchanged plus the amount of any premiums required to be paid thereon and fees and expense associated therewith, (ii) such Refinancing Indebtedness initially closes into escrowhas a later or equal final maturity and a larger or equal weighted average life than the Indebtedness being refinanced, but only while refunded, renewed, extended or exchanged, (iii) the covenants, events of default and any Guaranty Obligations in respect thereof, taken as a whole, shall not be materially less favorable to the Borrower and its Restricted Subsidiaries (as determined by the Administrative Agent in its reasonable discretion) than those contained in the Indebtedness being refinanced, refunded, renewed, extended or exchanged and (iv) at the time of, and after giving effect to, such proceeds are held in escrow)refinancing, refunding, renewal, extension or exchange, no Default or Event of Default shall have occurred and be continuing;
(l) additional unsecured Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)Subsidiaries; provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed (after giving effect to the outstanding principal balance of the Term Loan) an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, Indebtedness and (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)continuing;
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;; 70
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) Indebtedness existing under or permitted by the Existing Credit Agreement as in effect on the Closing Date (including incremental term loans and incremental increases in the Revolving Credit Commitment permitted by the Existing Credit Agreement as in effect on the Closing Date). provided, that in the event that any Indebtedness in the form of secured term loans or secured notes are incurred or issued by the Borrower under this Section 10.1 (other than as permitted under clauses (e) and (f)) during the term of this Agreement and the All-In Yield of such Indebtedness exceeds the All-In Yield on the Term Loan outstanding at such time by more than 0.50%, then the Applicable Margin for the Term Loan shall automatically be increased to a level such that the extent constituting All-In Yield on the Term Loan shall be 0.50% less than the All-In Yield on such Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. Create(a) The Company will not, incurand will not permit any Subsidiary to, assume create, issue, assume, guarantee or suffer to exist otherwise incur or in any Indebtedness manner be or become liable in respect of any Indebtedness, except:
(ai) Indebtedness evidenced by the Notes and the Subsidiary Guaranty;
(ii) Indebtedness of a Subsidiary Guarantor evidenced by the Guaranty delivered pursuant to the Bank Credit Agreement; provided that the Indebtedness evidenced by any such Guaranty constitutes Qualified Subsidiary Indebtedness;
(iii) Indebtedness of the Company and its Subsidiaries outstanding as of the date of this Agreement and described on SCHEDULE 5.15 hereto;
(iv) additional Indebtedness of the Company and its Subsidiaries; provided that at the time of creation, issuance, assumption, guarantee or incurrence thereof and after giving effect thereto and to the application of the proceeds thereof:
(1) the Obligations ratio of Consolidated Indebtedness to Consolidated Total Assets as at such date shall not exceed 0.45 to 1.00; and
(excluding Hedging Obligations 2) in the case of the issuance of any Indebtedness of the Company or its Subsidiaries secured by Liens permitted pursuant by SECTION 10.6(I) and any Indebtedness of a Subsidiary (other than (A) Qualified Subsidiary Indebtedness and (B) Indebtedness of any Subsidiary described on SCHEDULE 5.15 and any renewal, extension, refinancing, replacement or refunding of such Indebtedness), the sum of (A) the aggregate amount of all Indebtedness secured by Liens permitted by SECTION 10.6(I) plus (B) the aggregate amount of all Indebtedness of Subsidiaries (other than (A) Qualified Subsidiary Indebtedness and (B) Indebtedness of any Subsidiary described on SCHEDULE 5.15 and any renewal, extension, refinancing, replacement or refunding of such Indebtedness), shall not exceed 33% of Consolidated Total Assets as at such date;
(v) Indebtedness of a Subsidiary to Section 10.1(b));the Company or to a Wholly-owned Subsidiary and Indebtedness of the Company to a Wholly-owned Subsidiary; and
(vi) Indebtedness evidenced by the 2002 Notes and the 2002 Subsidiary Guaranty.
(b) Indebtedness incurred existing within the limitations of SECTION 10.5(A)(III) may be renewed, extended, refinanced, replaced or refunded (without increase in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rateprincipal amount) reasonably satisfactory without regard to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;limitations of SECTION 10.5(A)(IV).
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of Any Person which becomes a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur date hereof shall for all purposes of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall SECTION 10.5 be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness created, issued, assumed or incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time it becomes a Subsidiary all Indebtedness of such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedPerson existing immediately after it becomes a Subsidiary.
Appears in 1 contract
Sources: Note Purchase Agreement (St Joe Co)
Limitations on Indebtedness. CreateIt will not nor will it permit any of the Subsidiaries to, contract, create, incur, assume or suffer permit to exist any Indebtedness Indebtedness, except:
(ai) Indebtedness arising under this Agreement and the Obligations Notes and the other Credit Documents and under the Credit Agreement and the other Credit Documents (excluding Hedging Obligations permitted pursuant to Section 10.1(b)as defined in the Credit Agreement);
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(dii) Indebtedness of the Borrower Company and its Restricted Subsidiaries incurred set forth in Schedule IV attached to the Sixth Amendment (but not including any renewals, refinancings or extensions thereof);
(iii) obligations of the Company and its Subsidiaries in respect of Hedging Agreements entered into in order to manage existing or anticipated interest rate or exchange rate and not for speculative purposes;
(iv) obligations of the Company and its Subsidiaries in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such PersonPermitted Receivables Financing, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing obligations constitute Indebtedness;
(iv) intercompany Indebtedness owed owing by any a Credit Party to another Credit Party;
(jvi) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, Notes and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any a guaranty of the Senior Unsecured Notes may be secured by on the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements terms set forth in the last sentence of Senior Note Indenture, if given by a Permitted Guarantor,
(vii) in addition to the definition of “Senior Unsecured Notes” may be secured Indebtedness otherwise permitted by this subparagraph 5.2(f), other purchase money Indebtedness hereafter incurred by the proceeds Company and its Subsidiaries; provided that the aggregate outstanding principal amount of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures 25,000,000 at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such any time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(nviii) Indebtedness incurred by the Borrower Bridge Notes and any refinancings, refundings, renewals or any replacements thereof (so long as the terms of its Restricted Subsidiariessuch refinancings, including Indebtedness represented by letters of credit renewals or replacements do not provide for the account maturities or amortization payments on or prior to November 15, 2007) and a guaranty of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided Bridge Notes by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection Permitted Guarantors on a pari passu basis with the acquisition guaranties of such Guarantors hereunder and any business refinancings, refundings renewals or assets permitted to be acquired hereunder;
replacements thereof (p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or on similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrenceterms); and
(qix) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more series of subordinated debt securities issued by the Company for aggregate Net Cash Proceeds not exceeding $250,000,000, on terms (including subordination terms) reasonably consistent with those customary in the United States capital markets for similar high yield subordinated debt instruments, if the Net Cash Proceeds are applied to repay the Loans as required by subsection 2.6(b) of the Credit Agreement and to make an offer to prepay the Notes pursuant to subparagraph 5.2(n), and guaranties of such clauses at any time and from time to time, provided that, at the time securities given by a Permitted Guarantor on such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedterms.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations Indebtedness and obligations owing under Hedge Agreements permitted pursuant to Section 10.1(b11.1(b));
(b) Indebtedness incurred and obligations owing under Hedge Agreements entered into in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including order to manage existing or anticipated interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent, exchange rate or commodity price risks and not for speculative purposes;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.111.1, and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that (i) the principal amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, (ii) the final maturity date and weighted average life of such refinancing, refunding, renewal or extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (iii) any refinancing, refunding, renewal or extension of any Subordinated Indebtedness shall be (A) on subordination terms at least as favorable to the Lenders, (B) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Indebtedness being refinanced, refunded, renewed or extended and (C) in an amount not less than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesCapital Leases and purchase money Indebtedness in an aggregate amount not to exceed $50,000,000 at any time outstanding;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such PersonPerson in connection with an Investment permitted pursuant to Section 11.3, to the extent that (i) such Indebtedness was not incurred in connection with with, or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof (other than such Person or any other Person that such Person merges with or that acquires the assets of such Person) shall have any liability or other obligation with respect to such Indebtedness and (iii) the aggregate outstanding principal amount of such Indebtedness does not exceed $30,000,000 at any Refinancing time outstanding;
(f) Indebtedness in respect thereof, of Foreign Subsidiaries in an aggregate principal amount not to exceed $100,000,000 150,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (f) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(h) unsecured intercompany Indebtedness (i) Indebtedness owed by any Credit Party to another Credit Party;
, (jii) owed by any Foreign Subsidiary to another Foreign Subsidiary, (iii) owed by any Foreign Subsidiary to any Credit Party in an aggregate principal amount not to exceed $75,000,000 at any time outstanding (provided that any Indebtedness of the Borrower or owed by such Foreign Subsidiary to any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries Credit Party pursuant to this clause (iii) shall be evidenced by a demand note in form and substance reasonably satisfactory to the Senior Unsecured NotesAdministrative Agent), and (iv) owed by any Refinancing Credit Party to any Foreign Subsidiary (provided, that such Indebtedness shall be subordinated to the Obligations in respect thereof that is unsecured (except that Refinancing Indebtedness issued a manner reasonably satisfactory to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrowAdministrative Agent);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.;
Appears in 1 contract
Sources: Credit Agreement (Fossil Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness Debt except:
(ai) Debt incurred pursuant to the Obligations Loan Documents (excluding Hedging Obligations Hedge Agreements permitted pursuant to Section 10.1(b))the following clause) (ii) and Second Lien Loan Documents;
(bii) Indebtedness Debt incurred in connection with a Hedging Agreement Hedge Agreements (A) with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative AgentAgent or (B) required pursuant to Section 5.01(p); provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(ciii) Indebtedness Debt existing on the Closing Date and not otherwise permitted under this Section and listed on Schedule 10.14.01(v), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof; and listed on Schedule 4.01(v) and any Refinancing Indebtedness refinancings, refundings, renewals or extensions thereof; provided that (A) the principal amount of such Debt is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (B) any refinancing, refunding, renewal or extension of any Subordinated Debt shall be (1) on subordination terms at least as favorable to the Lenders, (2) no more restrictive on the Borrower and its Subsidiaries than the Subordinated Debt being refinanced, refunded, renewed or extended and (3) in an amount not more than the amount outstanding at the time of such refinancing, refunding, renewal or extension;
(div) Indebtedness Debt of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesCapitalized Leases in an aggregate amount not to exceed $10,000,000 on any date of determination;
(ev) purchase money Indebtedness Debt of the Borrower and its Restricted Subsidiaries, and Subsidiaries in an aggregate amount not to exceed $10,000,000 on any Refinancing Indebtedness in respect thereofdate of determination;
(fvi) Indebtedness Debt of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness Debt was not incurred in connection with or in contemplation of, of such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofassets, in an aggregate amount not to exceed $100,000,000 in the aggregate at any time outstandingoutstanding $25,000,000;
(gvii) Guaranty Obligations Guaranties in favor of the Administrative Agent for the benefit of the Secured PartiesAdministrative Agent and the Lenders;
(hviii) Guaranty Obligations Guaranties with respect to Indebtedness Debt permitted pursuant to clauses (i) through (v) of this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtednesssubsection;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(lix) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date Subordinated Debt so long as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to such Subordinated Debt the incurrence of any such Indebtedness Leverage Ratio would be less than or equal to .25 below the applicable Leverage Ratio set forth in Section 5.04(a) calculated on a pro forma basis, as if such incurrence of Indebtedness had occurred basis on the first day date of the twelve month period ending on last quarter reported and the last day of Interest Coverage Ratio would be at least .25 greater than the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants applicable Interest Coverage Ratio set forth in Article IX, and Section 5.04(b) calculated on a pro forma basis on the Borrower shall have delivered to date of the Administrative Agent a certificate last quarter reported; provided that in the case of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such complianceeach issuance of Subordinated Debt, (iiiA) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing or would be caused by the issuance of such Subordinated Debt, and (ivB) the documentation governing Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness contains customary market termsSubordinated Debt;
(mx) additional secured Indebtedness Additional Debt not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent $10,000,000;
(10%xi) Debt incurred in the ordinary course of Consolidated Tangible Assets, determined, with business in respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as obligations of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant Borrower or any Subsidiary to clauses pay the deferred purchase price of goods or services or progress payments in connection with such goods and services that are paid by the Borrower or such Subsidiary in accordance with the applicable payment terms; and
(axii) and (b), respectively, Debt of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse any Loan Party owed to any Credit other Loan Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than not to exceed $150,000,000 and 50,000,000; provided, that no agreement or instrument with respect to Debt permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of the Borrower shall provide notice to the Administrative Agent thereof pursuant make any payment to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted SubsidiariesSubsidiaries (in the form of dividends, including Indebtedness represented by letters of credit intercompany advances or otherwise) for the account purpose of enabling the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by to pay the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.
Appears in 1 contract
Sources: First Lien Credit Agreement (Landrys Restaurants Inc)
Limitations on Indebtedness. CreateThe District covenants and agrees that it will not issue any Additional Bonds or incur any other Parity Obligations, incurother than the 2011 Bonds if, assume or suffer after giving effect to exist any all other Indebtedness except:incurred by the District, such Indebtedness could not be incurred pursuant to this Section 704. Any Additional Parity Obligations and Junior Obligations may be incurred only in the manner and pursuant to the terms set forth in this Section 704; provided, however, that VRA Senior Obligations may become VRA Subordinate Obligations without limitation.
(a) Long-Term Indebtedness may be incurred if prior to incurrence of the Long-Term Indebtedness there is delivered to the Trustee:
(i) an Officer’s Certificate of a District Representative certifying that the Long-Term Debt Service Coverage Ratio for the most recent period of twelve (12) full consecutive calendar months preceding the date of delivery of the certificate of the District Representative for which there are Financial Statements available, adjusted for revenues and expenses resulting from anticipated new customers and any planned program of rate increases that has been approved by the Commission, taking all Long-Term Indebtedness incurred after such period and the proposed Long-Term Indebtedness into account as if such Long-Term Indebtedness had been incurred at the beginning of such period, is not less than one hundred twenty percent (120%); or
(ii) an Officer’s Certificate of a District Representative certifying that the District is expected to comply with the Rate Covenant set forth in Section 705 of this Trust Agreement for the five Fiscal Years following the date of issuance of the proposed Long-Term Indebtedness. Such certificate shall be accompanied by a statement of the relevant assumptions upon which such pro forma Financial Statements for the District are based including, but not limited to, adjustments to revenues and expenses resulting from anticipated new customers and any planned program of rate increases that has been approved by the Commission; or
(iii) if the Long-Term Indebtedness is authorized for any purpose other than the refunding of the outstanding Senior Obligations or Outstanding Parity Obligations, an Officer’s Certificate of a District Representative to the effect, and to the extent applicable, that in his or her opinion (excluding Hedging Obligations permitted pursuant a) the improvements or property to which the proceeds from the issuance of the Long-Term Indebtedness are to be applied will be a part of the Wastewater System, (b) the proceeds of the Long-Term Indebtedness and other specified sources will be sufficient to pay the estimated cost of such improvements or property, (c) the period of time which will be required to complete such improvements or acquire such property, and (d)(1) the proceeds of the Long-Term Indebtedness are necessary to complete the project to be financed thereby, (2) the failure to make such improvements or acquire or construct such property will result in an interruption or reduction of Net Revenues, or (3) during the first two Fiscal Years following the completion of the improvements or the acquisition of the property, the projected Net Revenues will satisfy the Rate Covenant in Section 10.1(b));705 hereof. In providing this certificate, the District Representative may take into consideration future Wastewater System rate increases, provided that such rate increases have been duly approved by the Commission and any other person and entity required to give approval for the rate increase to become effective. In addition, he or she may take into consideration additional future revenues of the Wastewater System to be derived under then existing contractual agreements entered into by the District and from reasonable estimates of growth in the customer base of the District; or
(iv) an Officer’s Certificate of a District Representative certifying compliance with the Rate Covenant set forth in Section 705 of this Trust Agreement for the most recent period of twelve (12) full consecutive calendar months for which there are Financial Statements available preceding the date of delivery of the certificate.
(b) Long-Term Indebtedness may be incurred in connection with for the purpose of refunding Outstanding Long-Term Indebtedness if either (i) a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory certificate of an independent financial advisor to the Administrative Agent; provided that any counterparty that is effect that, the Long-Term Indebtedness issued to refund outstanding Senior Obligations or Outstanding Parity Obligations will have, in the aggregate, a Lender shall lower Long-Term Debt Service Requirement than the Long-Term Debt Service Requirement on the Senior Obligations or Outstanding Parity Obligations to be deemed satisfactory refunded with the proceeds thereof, or (ii) an Officer’s Certificate of a District Representative to the Administrative Agent;effect that during the first two complete Fiscal Years following the issuance of the refunding Long-Term Indebtedness, the projected Net Revenues will satisfy the Rate Covenant in Section 705 hereof. In providing the certificate described in this clause (b), the Officer’s Certificate may take into account the factors described in the last two sentences of subsection (a)(iii) of this Section. In addition, the Trustee shall receive an Opinion of Counsel stating that upon the incurrence of such proposed Long-Term Indebtedness and application of the proceeds thereof (on the Cross-over Date, in the case of Cross-over Refunding Indebtedness), the Outstanding Long-Term Indebtedness to be refunded thereby will no longer be Outstanding.
(c) Short-Term Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries may be incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of as a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, Parity Obligation subject to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided same tests that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect apply to the incurrence of Parity Obligations generally; provided, however, that notwithstanding such limitation, the District may incur as a Parity Obligation from time to time and have outstanding at any such one time Short-Term Indebtedness on a pro forma basis, in an amount up to 10% of its Total Operating Revenues as if such incurrence of Indebtedness had occurred on reflected in the first day Financial Statements of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of District for the most recently-ended fiscal quarter recent period of twelve consecutive months for which financial statements have been furnished pursuant to clauses (a) Financial Statements are available and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that the District may incur Short-Term Indebtedness secured by a Credit Facility without limitation. Short-Term Indebtedness may be incurred as Junior Obligations without compliance with the tests that apply to the incurrence of Parity Subordinate Indebtedness.
(d) Additional VRA Subordinate Obligations may be incurred by the District subject to the delivery of an Officer’s Certificate of a District Representative demonstrating compliance with Sections 704(a) or (b) and 705(a) hereof, provided, however, anything in this Trust Agreement notwithstanding, the District may make such underlying obligation additional covenants in a supplemental resolution, financing agreement or other agreement authorizing and securing a VRA Subordinate Obligations as may be required by VRA as a condition of selling such VRA Subordinate Obligations.
(e) Junior Obligations may be incurred without limitation.
(f) For purposes of demonstrating compliance with the incurrence test set forth in subsection (a) of this Section 704, the District may (but is not required to) elect in respect the applicable Series Agreement to treat all or any Parity Obligations authorized in a Credit Facility (including, for example and without limitation, a self-liquidity arrangement provided by the District, a line of borrowed money;
(o) Indebtedness credit or a liquidity facility supporting a commercial paper program), but not immediately issued or incurred under such Credit Facility, as subject to such incurrence test as of a single date, notwithstanding that none, or less than all, of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the authorized principal amount of such Indebtedness to more than one Parity Obligations shall have been issued or incurred as of such clausesdate.
(g) Notwithstanding the foregoing provisions of this Section 704, (iii) may elect in its sole discretion to apportion such Indebtedness between or among nothing herein contained shall preclude the District from incurring any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedobligation under a Credit Facility.
Appears in 1 contract
Sources: Trust Agreement
Limitations on Indebtedness. CreateThe Company will not, incurand will not permit any Subsidiary to, create, assume or suffer to exist incur any Indebtedness except:
(a1) Indebtedness evidenced by the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Notes;
(b2) Indebtedness incurred in connection with a Hedging under the Credit Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 35,000,000 in principal amount outstanding at any time outstanding;
(g) Guaranty Obligations in favor one time; provided, however, such Indebtedness may exceed $35,000,000 if the consolidated EBITDA of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower Company and its Restricted Subsidiaries pursuant to the Senior Unsecured NotesSubsidiaries, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on basis for the first day of the twelve twelve-month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, calendar quarter immediately preceding the Borrower date of such incurrence equals or exceeds 1.75 times the amount of the projected consolidated net interest expense (before amortization of debt issuance costs) of the Company and its Restricted Subsidiaries would have been in compliance with all for the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of twelve-month period immediately following the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market termsadditional Indebtedness;
(m3) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount of the Company and its Subsidiaries outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, date of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)Agreement;
(n4) Indebtedness incurred by the Borrower relating to insurance premium financing or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ ' compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in each case incurred in the ordinary course of business; provided that ;
(5) Indebtedness relating to the underlying obligation to perform is that of the Borrower Company's and its Subsidiaries' controlled disbursement accounts or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness overdrafts of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligationszero balance bank accounts, in each case, case incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, ;
(6) Indebtedness in respect of Capitalized Lease Obligations or purchase money financings (including the purchase price of inventory); provided that such Indebtedness is extinguished within five secured only by the applicable asset;
(57) Business Days Indebtedness between a Subsidiary and the Company or between Subsidiaries;
(8) Indebtedness represented by surety and performance bonds and similar obligations, in each case incurred in the ordinary course of incurrencebusiness;
(9) Hedging Obligations of the Company or a Subsidiary incurred in the ordinary course of business;
(10) Notwithstanding any amounts incurred under clauses (1) through (9) of this Section 5.5, additional Indebtedness of the Company and its Subsidiaries outstanding at any time that does not exceed in the aggregate an amount equal to
(i) $75,000,000 less (ii) the aggregate principal amount of Notes then outstanding; and
(q11) to the extent constituting Indebtedness, liabilities Indebtedness issued or incurred in connection with property assessed clean energy financing the renewal, expansion or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy refunding of Indebtedness permitted by the preceding clauses (PACE1) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes through (10) of this Agreement, if an item Section 5.5; provided that any expansion of such Indebtedness meets would otherwise satisfy the criteria conditions of more than one of the above clauses, the Borrower other clauses (i1) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, through (ii10) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedthis Section 5.5.
Appears in 1 contract
Sources: Note Agreement (Family Restaurants)
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness. Notwithstanding the foregoing limitations, the limitations of this Section 1008 shall not apply to exist any Indebtedness exceptthe incurrence of the following Indebtedness:
(ai) Indebtedness of the Company evidenced by the Securities, Indebtedness of any Guarantor in respect of the Guaranties with respect thereto and Indebtedness of the Obligors in respect of all other Indenture Obligations and Indenture Documents;
(excluding Hedging ii) Indebtedness of the Company evidenced by the New Tranche A Term Notes or under or in respect of the Term Loan Agreement, and all other obligations continued or incurred thereunder, Indebtedness of any guarantor in respect of the guaranties of the obligations under the Term Loan Agreement or the New Tranche A Term Notes, Indebtedness of PCI Chemicals Canada Company evidenced by the New Tranche B Notes, Indebtedness of any guarantor in respect of the guaranties of the obligations under the New Tranche B Notes Indenture or the New Tranche B Notes and Indebtedness in respect of all other Transaction Documents and all other obligations incurred thereunder;
(iii) Indebtedness of any Indenture Obligor or Obligor Subsidiaries constituting Existing Indebtedness and any extension, deferral, renewal, refinancing or refunding thereof, without increasing the aggregate principal amount of such Indebtedness then outstanding and covered thereby;
(iv) Indebtedness of any Obligor or Obligor Subsidiaries in respect of and in accordance with the terms of, the Exit Facility; provided that notwithstanding the terms of the Exit Facility, the aggregate principal amount of Indebtedness at any time outstanding under the Exit Facility shall not exceed $65,000,000;
(v) Capitalized Lease Obligations permitted pursuant of any Indenture Obligor or its Obligor Subsidiaries, including Indebtedness in respect of Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiary secured by Liens that secure the payment of all or part of the purchase price of assets or property acquired or constructed in the ordinary course of business after the date hereof; provided, however, that the aggregate principal amount of such Capitalized Lease Obligations, including such Indebtedness in respect of Capitalized Lease Obligations of Indenture Obligors and all of their respective Obligors Subsidiaries, does not exceed $10,000,000 in the aggregate outstanding at any time;
(vi) Indebtedness of PCI or the Company to Section 10.1(b)any of their respective Subsidiaries or of any such Subsidiary to PCI, the Company or another such 103 Subsidiary (but only so long as such Indebtedness is held by PCI, the Company or such Subsidiary);
(bvii) Indebtedness incurred in connection with a the CRC Portfolio and other Indebtedness, not secured by or subject to any Lien, under Hedging Agreement Obligations incurred in the ordinary course of PCI's or the Company's business or entered into by the Company (or any other Person on behalf of the Company with a counterparty and upon terms and conditions (including interest ratethe express authority of the Company to bind the Company with respect thereto) reasonably satisfactory for the sole purpose of offsetting any open position with respect to the Administrative AgentCRC Portfolio and otherwise mitigating any exposure in respect of the CRC Portfolio; provided provided, however, that in the case of foreign currency exchange or similar agreements which relate to other Indebtedness, such agreements do not increase the Indebtedness of any counterparty that is Indenture Obligor or its Obligor Subsidiaries outstanding other than as a Lender shall be deemed satisfactory result of fluctuations in foreign currency exchange rates, and in the case of interest rate protection agreements, only if the notional principal amount of such interest rate protection agreement does not exceed the principal amount of the Indebtedness to the Administrative Agentwhich such interest rate protection agreement relates;
(cviii) Indebtedness existing on the Closing Date and listed on Schedule 10.1Indebtedness, and not secured by or subject to any Refinancing Indebtedness in respect thereof;
Lien (d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofexcept as shall, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor the ordinary course of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only business, be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed backed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower cash or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrowcash equivalents);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposalcompletion, completionguaranty, surety and similar bonds and completion guarantees bonds, banker's acceptances, bills of exchange or letters of credit provided or endorsed by PCI, the Borrower Company or its Restricted any of their respective Subsidiaries in the ordinary course of business;
(ix) Indebtedness, not secured by or subject to any Lien, in respect of (i) any guaranty (not otherwise referred to above) provided by PCI, the Company or any of their respective Subsidiaries in respect of any other Indebtedness permitted to be incurred hereunder; provided, however, that if such Indebtedness guaranteed is (x) subordinated in right of payment to any other Indebtedness of the Indenture Obligor thereof, then such guaranty shall be subordinated to Indebtedness of such guarantor to the same extent, and (y) secured by a Lien otherwise permitted pursuant to Section 1012, then such guaranty may be so secured, (ii) indemnities in favor of Persons issuing title insurance policies, (iii) indemnifications in the Transaction Documents and in any agreements contemplated thereunder or thereby, (iv) indemnities in the Organizational Documents of PCI and its Subsidiaries, and (v) customary indemnities given to a purchaser of assets from the Company; provided that the underlying obligation sale of such assets by the Company is permitted pursuant to perform is that of the Borrower or one of its Restricted Subsidiaries terms hereof;
(x) Indebtedness subject to Liens permitted by Section 1012 (including purchase money Indebtedness and not that of any other Person and, provided, further, that such underlying obligation is not Attributable Indebtedness in respect of borrowed moneySale and Leaseback Transactions);
(oxi) Indebtedness incurred in respect of New Other Secured Notes and Claims; 104
(xii) any refinancing, refunding, deferral, renewal or extension (each, a "Refinancing") of any Indebtedness of any Obligor or any Obligor Subsidiary permitted by subsections (ii), (iii), (iv), (x) and (xi) (the "Refinancing Indebtedness"); provided, however, that (a) such Refinancing Indebtedness does not exceed the aggregate principal amount of the Indebtedness so refinanced, plus the amount of any premium required to be paid in connection with such Refinancing in accordance with the terms of such Indebtedness or the amount of any premium reasonably determined by such Obligor or Obligor Subsidiary as necessary to accomplish such Refinancing, plus the amount of reasonable and customary out-of-pocket fees and expenses payable in connection therewith, (b) the Refinancing Indebtedness does not provide for any mandatory redemption, amortization or sinking fund requirement in an amount greater than or at a time prior to the amounts and times specified in the Indebtedness being refinanced, refunded, deferred, renewed or extended and (c) if the Indebtedness being refinanced, refunded, deferred, renewed or extended is subordinated to the Indebtedness of the Borrower consisting of customary indemnificationObligor or Obligor Subsidiaries under the Securities, deferred purchase price adjustments the Refinancing Indebtedness incurred to refinance, refund, defer, renew or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that extend such Indebtedness is extinguished within five (5) Business Days subordinated in right of incurrencepayment to the Obligations on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being so refinanced, refunded, deferred, renewed or extended; andor
(qxiii) in addition to the extent constituting IndebtednessIndebtedness permitted by clauses (i) through (xi) of this Section 1008, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiencyIndebtedness of such Obligors and Obligor Subsidiaries, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financingtaken together, in an aggregate principal amount outstanding not to exceed $25,000,000. For all purposes of 200,000 at any time outstanding; provided, however, that no Indebtedness permitted to be incurred pursuant to this Agreement, if an item of Indebtedness meets Section 1008 (except for the criteria of more than one of the above clauses, the Borrower (iExit Facility) shall have contain any terms that are more restrictive on or to the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount obligor of such Indebtedness to more than one of such clausesthose set forth in this Indenture, (iii) may elect in its sole discretion to apportion such Indebtedness between whether taken individually or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedas a whole.
Appears in 1 contract
Sources: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. CreateThe Issuer will not create, incur, assume or suffer to exist exist, contingently or otherwise, any Indebtedness Indebtedness, except:
(a) Indebtedness of the Obligations (excluding Hedging Obligations permitted pursuant Issuer to Section 10.1(b))the Holders arising hereunder including the Senior Notes;
(b) Indebtedness arising under any Mortgage Note or otherwise incurred in connection with a Hedging Agreement with a counterparty any Mortgage Loan, now existing or hereafter incurred, as the same may be amended, modified, supplemented or refinanced, or any replacement, restructuring or refinancing thereof; PROVIDED that no Mortgage Loan shall exceed 90% of the fair market value of the Owned Real Property and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentImprovements thereon;
(c) Indebtedness existing on Unsecured Current Liabilities incurred in the Closing Date and listed on Schedule 10.1ordinary course of business other than those which are for money borrowed or are evidenced by bonds, and any Refinancing Indebtedness in respect thereofdebentures, notes or other similar instruments;
(d) Indebtedness of (not overdue) secured by Liens permitted by Section 5.9 hereof as the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leasessame may be amended, modified, supplemented or refinanced, or any replacement, restructuring or refinancing thereof;
(e) purchase money Indebtedness of existing on the Borrower and its Restricted SubsidiariesEffective Date as the same may be amended, and modified, supplemented or refinanced, or any Refinancing Indebtedness in respect replacement, restructuring or refinancing thereof;
(f) Any other Indebtedness of a Person existing at provided for in the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstandingReorganization Plan;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured PartiesAcquisition Indebtedness;
(h) Guaranty Capitalized Lease Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing and/or Purchase Money Indebtedness;
(i) Indebtedness owed by any Credit Party of the Issuer to another Credit Partya Subsidiary in respect of intercompany advances or transactions;
(j) Indebtedness Guarantees in the ordinary course of business of the Borrower obligations of suppliers, landlords, customers, franchisees and licensees of the Issuer or any Restricted Subsidiary consisting of Qualified Trust Indebtednessits Subsidiaries;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)Subordinated Indebtedness;
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect related to the incurrence of any such Indebtedness on a pro forma basisRedevelopment Work, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarterincluding, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IXwithout limitation, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;construction loans; and
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished be incurred pursuant to clauses (a) and through (b1) above, which, together with any other Indebtedness incurred pursuant to this clause (m), respectively, of Section 7.1 (it being understood has an aggregate principal amount that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall does not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses 30 million at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer to exist otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness except:
(a) Indebtedness. Notwithstanding the Obligations (excluding Hedging Obligations permitted pursuant to foregoing limitations, the limitations of this Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory 1008 shall not apply to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness incurrence of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing following Indebtedness;:
(i) Indebtedness owed of the Company evidenced by the Securities, Indebtedness of any Credit Party to another Credit PartyGuarantor evidenced by the Guaranties with respect thereto and Indebtedness of the Company and of the Guarantors, as evidenced by and in respect of all other Transaction Documents;
(jii) Indebtedness evidenced by the New Tranche A Notes and Indebtedness of any guarantor under the New Tranche A Notes Indenture evidenced by the guaranties with respect thereto;
(iii) Indebtedness of any Indenture Obligor or Obligor Subsidiaries constituting Existing Indebtedness and any extension, deferral, renewal, refinancing or refunding thereof, without increasing the Borrower or any Restricted Subsidiary consisting aggregate principal amount of Qualified Trust Indebtednesssuch Indebtedness then outstanding and covered thereby;
(kiv) Indebtedness of PCI and the Borrower Company in respect of and in accordance with the terms of, the Exit Facility; provided that, notwithstanding the terms of the Exit Facility, the aggregate principal amount of Indebtedness at any time outstanding under the Exit Facility shall not exceed $65,000,000;
(v) Capitalized Lease Obligations of any Indenture Obligor or its Restricted Subsidiaries pursuant to the Senior Unsecured NotesObligor Subsidiaries, and any Refinancing including Indebtedness in respect thereof of Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiary secured by Liens that is unsecured secure the payment of all or part of the purchase price of assets or property acquired or constructed in the ordinary course of business after the Closing Date; provided, however, that the aggregate principal amount of such Capitalized Lease Obligations, including such Indebtedness in respect of Capitalized Lease Obligations of Indenture Obligors and all of their respective Obligors Subsidiaries, does not exceed $10,000,000 in the aggregate outstanding at any time;
(except that Refinancing vi) Indebtedness issued of PCI or the Company to refinance any of their respective Subsidiaries or of any such Subsidiary to PCI, the Senior Unsecured Notes may be secured by the proceeds of Company or another such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, Subsidiary (but only while so long as such proceeds are Indebtedness is held in escrowby PCI, the Company or such Subsidiary);
(lvii) additional Indebtedness[, not secured by or subject to any Lien,] under Hedging Obligations incurred in the ordinary course of PCI's or the Company's business; provided, however, [that if such Indebtedness shall be secured by or subject to any Liens permitted under Section 1012, the aggregate Indebtedness at anyone time outstanding in respect of all such Hedging Obligations which shall be secured by or subject to such Liens [cash] shall not exceed $[o], and provided, further,] that in the case of foreign currency exchange or similar agreements which relate to other Indebtedness, such agreements do not increase the Indebtedness of any Indenture Obligor or its Obligor Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates, and in the case of interest rate protection agreements, only if the notional principal amount of such interest rate protection agreement does not exceed the principal amount of the Indebtedness to which such interest rate protection agreement relates;
(viii) Indebtedness, not secured by or subject to any Lien [(except as shall, in the ordinary course of business, be backed by cash)], in respect of performance, completion, guaranty, surety and similar bonds, banker's acceptances, bills of exchange or letters of credit provided or to be endorsed by PCI, the Company or any of their respective Subsidiaries in the ordinary course of business;
(ix) Indebtedness, not secured by or subject to any Lien, in respect of (i) any guaranty (not otherwise referred to above) provided by PCI, the Company or any of their respective Subsidiaries in respect of any other Indebtedness permitted to be incurred hereunder; provided, however, that if such Indebtedness guaranteed is subordinated in right of payment to any other Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured Indenture Obligor thereof, then such guaranty shall be subordinated to Indebtedness of such guarantor to the same extent, (except that Indebtedness ii) indemnities in favor of Persons issuing title insurance policies, (iii) indemnifications in the form of senior unsecured notes that otherwise meet the requirements set forth Transaction Documents and in any agreements contemplated thereunder or thereby and (iv) indemnities in the last sentence Organizational Documents of PCI and its Subsidiaries;
(x) Indebtedness, not secured by or subject to any Lien, of a Person which becomes a Subsidiary of the definition of “Senior Unsecured Notes” may be secured Company incurred and outstanding on or prior to the date on which such Person was acquired as a Subsidiary by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)Company; provided that (i) on the date of such Indebtedness matures acquisition and after giving effect thereto, the Consolidated Fixed Charge Coverage Ratio of the Company for the most recently ended four full Fiscal Quarters for which internal financial statements are available immediately preceding the date of such incurrence would have been at least six (6) months equal to 2.5:1.0 determined on a pro forma basis after the later giving effect, in each case, to occur such acquisition which makes that Person a Subsidiary of the Revolving Credit Maturity Date Company, and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) immediately after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence acquisition of such Indebtedness and after giving effect theretoPerson, no Default or Event of Default shall exist or occur and be continuing and (iv) the documentation governing such Indebtedness contains customary market termscontinuing;
(mxi) additional Indebtedness subject to Liens permitted by Section 1012 (including Attributable Indebtedness in respect of Sale and Leaseback Transactions);
(xii) Indebtedness incurred in respect of New Other Secured Notes and Claims;
(xiii) Subordinated Indebtedness, not secured Indebtedness not otherwise permitted pursuant by or subject to this Section in an aggregate amount outstanding any Lien, not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of $25,000,000 in the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively)aggregate at any one time outstanding; provided that (i) on the amount date of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Subordinated Indebtedness and after giving effect thereto, the Consolidated Fixed Charge Coverage Ratio of the Company for the most recently ended four full Fiscal Quarters immediately 92 preceding the date of such incurrence would have been at least equal to 2.5:1.0 determined on a pro forma basis, and (ii) immediately after giving effect to such Indebtedness, no Default or Event of Default shall exist have occurred and be continuing; or
(xiv) any refinancing, refunding, deferral, renewal or be continuing extension (each, a "Refinancing") of any Indebtedness of any Obligor or any Obligor Subsidiary permitted by subsections (ii), (iv), (x) and (ivxii) notwithstanding (the Consolidated Total Leverage Ratio at "Refinancing Indebtedness"); provided, however, that (a) such time, a Springing Lien Event shall be deemed to have occurred upon Refinancing Indebtedness does not exceed the use aggregate principal amount of the $250,000,000 basket pursuant Indebtedness so refinanced, plus the amount of any premium required to clause be paid in connection with such Refinancing in accordance with the terms of such Indebtedness or the amount of any premium reasonably determined by such Obligor as necessary to accomplish such Refinancing, plus the amount of reasonable and customary out-of-pocket fees and expenses payable in connection therewith, (ib) above the Refinancing Indebtedness does not provide for any mandatory redemption, amortization or sinking fund requirement in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice or at a time prior to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety amounts and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries times specified in the ordinary course of business; provided that Indebtedness being refinanced, refunded, deferred, renewed or extended and (c) if the underlying obligation Indebtedness being refinanced, refunded, deferred, renewed or extended is subordinated to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting Obligor or Obligor Subsidiaries under the Securities, the Refinancing Indebtedness incurred to refinance, refund, defer, renew or extend such Indebtedness is subordinated in right of customary indemnificationpayment to the Obligations on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being so refinanced, deferred purchase price adjustments refunded, deferred, renewed or similar obligationsextended; provided, in each casehowever, incurred or assumed in connection with the acquisition of any business or assets that no Indebtedness permitted to be acquired hereunder;
incurred pursuant to this Section 1008 (p) Indebtedness of except for the Borrower Exit Facility or any Restricted Subsidiary arising from the honoring by a bank refinancing thereof permitted under this Indenture) shall contain any terms that are more restrictive on or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount obligor of such Indebtedness to more than one of such clausesthose set forth in this Indenture, (iii) may elect in its sole discretion to apportion such Indebtedness between whether taken individually or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedas a whole.
Appears in 1 contract
Sources: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. CreateDirectly or indirectly create, incur, assume or suffer otherwise become directly or indirectly liable with respect to exist any Indebtedness except:except for the following (collectively, “Permitted Indebtedness”):
(a) the Obligations (excluding Hedging Obligations permitted Indebtedness incurred by any Loan Party pursuant to Section 10.1(b));the Term Loan Facility and Indebtedness incurred by any Loan Party otherwise than pursuant to the Term Loan Facility (including pursuant to any Additional Obligations Documents, any Permitted Debt Exchange or any Rollover Indebtedness but not pursuant to the Loan Documents) in an aggregate principal amount at any time outstanding not to exceed (A) $61,700,000 plus (B) the Maximum Incremental Facilities Amount.
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred in connection with a Hedging pursuant to this Agreement with a counterparty and upon terms and conditions the other Loan Documents (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative AgentIncremental Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1, and any Refinancing Indebtedness in respect thereof;
(d) Unsecured Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Parent Borrower or any of its Restricted Subsidiaries;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, including Indebtedness represented by letters of credit for and disclosed on Schedule 8.13(d), together with any renewal, extension, refinancing or refunding pursuant to clause (i) below;
(e) [Reserved];
(f) Guarantee Obligations incurred by:
(i) the account of the Parent Borrower or any of its Restricted Subsidiary, Subsidiaries in respect of workers’ compensation claimsIndebtedness of a Loan Party that is permitted hereunder; provided that Guarantee Obligations in respect of Indebtedness permitted pursuant to clauses (a), self-insurance obligations(c) and (m) shall be permitted only to the extent that such Guarantee Obligations are incurred by Guarantors (other than, performancein the case of clause (m), proposal, completion, surety and similar bonds and completion guarantees provided Guarantee Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) the Parent Borrower or any of its Restricted Subsidiaries in respect of lease obligations of Non-Loan Parties (to the extent such lease obligations constitute Indebtedness);
(iii) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(iv) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person; provided that the aggregate amount at any time outstanding of such Guarantee Obligations incurred pursuant to this clause (iv), when aggregated with the amount of all other Guarantee Obligations incurred and outstanding pursuant to this clause (iv) and all Indebtedness incurred and outstanding pursuant to clause (w) of this Subsection 8.13, shall not exceed the greater of (x) $30,000,000 and (y) the amount equal to 5.00% of Consolidated Total Assets at the time of such Guarantee Obligations being incurred;
(v) the Parent Borrower or any of its Restricted Subsidiaries in connection with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(vi) the Parent Borrower or any of its Restricted Subsidiaries consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business; provided that ;
(vii) the underlying obligation to perform is that of the Parent Borrower or one any of its Restricted Subsidiaries in respect of Investments expressly permitted pursuant to clause (c), (j), (l), (m) or (v) of the definition of “Permitted Investments”;
(viii) the Parent Borrower or any of its Restricted Subsidiaries in respect of (x) Management Guarantees and not that (y) third-party loans and advances to officers or employees of any Parent Entity or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clause (l) or (m) of the definition of “Permitted Investments”;
(ix) the Parent Borrower or any of its Restricted Subsidiaries in respect of Reimbursement Obligations in respect of Letters of Credit or with respect to reimbursement obligations in respect of any other Person and, provided, further, that such underlying obligation is not letters or credit permitted under this Agreement;
(x) the Parent Borrower or any of its Restricted Subsidiaries in respect of borrowed money;
(o) Indebtedness performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of the Borrower consisting of customary indemnificationcredit, deferred purchase price adjustments bankers’ acceptances or similar instruments or obligations, in each caseall in, or relating to liabilities or obligations incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a checkin, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided provided, that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.16.1(l), and the renewal, refinancing, refunding, extension and replacement (but not the increase in the aggregate principal amount) thereof; provided that any Refinancing Indebtedness refinancing, refunding, extension or replacement of any Senior Unsecured Notes shall also be subject to the satisfaction of the requirements set forth in respect thereofSection 10.1(k);
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Capital Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereofassets, in an aggregate amount not to exceed $100,000,000 in the aggregate at any time outstandingoutstanding $100,000,000, and any refinancings, refundings, renewals or extensions thereof; provided that, any (i) such refinancings, refundings, renewals or extensions do not increase the principal amount thereof, (ii) such refinancings, refundings, renewals or extensions are issued on terms and conditions reasonably satisfactory to the Administrative Agent (including a maturity date at least six (6) months after the Revolving Credit Maturity Date) and (iii) no Default or Event of Default exists and is continuing at the time of consummation thereof (both before and giving effect thereto);
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) unsecured Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to each of the Senior Unsecured Notes, and and, in each case, any refinancings, refundings, renewals, extensions or exchanges thereof (“Refinancing Indebtedness in respect thereof Indebtedness”); provided that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of i) such Refinancing Indebtedness if is an original aggregate principal amount not greater than the aggregate principal amount of, and unpaid interest on, the Indebtedness being refinanced, refunded, renewed, extended or exchanged plus the amount of any premiums required to be paid thereon and fees and expense associated therewith, (ii) such Refinancing Indebtedness initially closes into escrowhas a later or equal final maturity and a larger or equal weighted average life than the Indebtedness being refinanced, but only while refunded, renewed, extended or exchanged, (iii) the covenants, events of default and any Guaranty Obligations in respect thereof, taken as a whole, shall not be materially less favorable to the Borrower and its Restricted Subsidiaries (as determined by the Administrative Agent in its reasonable discretion) than those contained in the Indebtedness being refinanced, refunded, renewed, extended or exchanged and (iv) at the time of, and after giving effect to, such proceeds are held in escrow)refinancing, refunding, renewal, extension or exchange, no Default or Event of Default shall have occurred and be continuing;
(l) additional unsecured Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)Subsidiaries; provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Incremental Term-1 Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000150,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Incremental Term-1 Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, Indebtedness and (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h)continuing;
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;; and
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.
Appears in 1 contract
Sources: Incremental Term Loan Agreement (Corrections Corp of America)
Limitations on Indebtedness. CreateNo Indenture Obligor shall, nor shall it permit its Obligor Subsidiaries to, directly or indirectly, create, incur, assume issue, assume, guaranty or suffer otherwise become liable with respect to, or become responsible for the payment of, contingently or otherwise ("incur"), any Indebtedness. Notwithstanding the foregoing limitations, the limitations of this Section 1008 shall not apply to exist any Indebtedness exceptthe incurrence of the following Indebtedness:
(ai) Indebtedness of the Company evidenced by the Securities, Indebtedness of any Guarantor evidenced by the Guaranties with respect thereto and Indebtedness of the Company and of the Guarantors, as evidenced by and in respect of all other Indenture Obligations and Indenture Documents;
(excluding Hedging ii) Indebtedness of Pioneer Americas evidenced by the New Tranche A Term Notes or under or in respect of the Term Loan Agreement and all other obligations continued or incurred thereunder, Indebtedness of any guarantor in respect of the guaranties of the obligations under the Term Loan Agreement or the New Tranche A Term Notes, Indebtedness of Pioneer Americas evidenced by the New Tranche A Notes, Indebtedness of any guarantor in respect of the guaranties of the New Tranche A Notes and Indebtedness in respect of all other Transaction Documents and all other obligations incurred thereunder;
(iii) Indebtedness of any Indenture Obligor or Obligor Subsidiaries constituting Existing Indebtedness and any extension, deferral, renewal, refinancing or refunding thereof, without increasing the aggregate principal amount of such Indebtedness then outstanding and covered thereby;
(iv) Indebtedness of any Obligor or Obligor Subsidiary in respect of and in accordance with the terms of, the Exit Facility; provided that notwithstanding the terms of the Exit Facility, the aggregate principal amount of Indebtedness at any time outstanding under the Exit Facility shall not exceed $65,000,000;
(v) Capitalized Lease Obligations permitted pursuant of any Indenture Obligor or its Obligor Subsidiaries, including Indebtedness in respect of Capitalized Lease Obligations of any Indenture Obligor or its Obligor Subsidiary secured by Liens that secure the payment of all or part of the purchase price of assets or property acquired or constructed in the ordinary course of business after the date hereof; provided, however, that the aggregate principal amount of such Capitalized Lease Obligations, including such Indebtedness in respect of Capitalized Lease Obligations of Indenture Obligors and all of their respective Obligors Subsidiaries, does not exceed $10,000,000 in the aggregate outstanding at any time;
(vi) Indebtedness of PCI or the Company to Section 10.1(b)any of their respective Subsidiaries or of any such Subsidiary to PCI, the Company or another such Subsidiary (but only so long as such Indebtedness is held by PCI, the Company or such Subsidiary);
(bvii) Indebtedness incurred in connection with a the CRC Portfolio and other Indebtedness, not secured by or subject to any Lien, under Hedging Agreement Obligations incurred in the ordinary course of PCI's or Pioneer Americas' business or entered into by Pioneer Americas (or any other Person on behalf of Pioneer Americas with a counterparty and upon terms and conditions (including interest ratethe express authority of Pioneer Americas to bind Pioneer Americas with respect thereto) reasonably satisfactory for the sole purpose of offsetting any open position with respect to the Administrative AgentCRC Portfolio and otherwise mitigating any exposure in respect of the CRC Portfolio; provided, however, that in the case of foreign currency exchange or similar agreements which relate to other Indebtedness, such agreements do not increase the Indebtedness of any Indenture Obligor or its Obligor Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates, and in the case of interest rate protection agreements, only if the notional principal amount of such interest rate protection agreement does not exceed the principal amount of the Indebtedness to which such interest rate protection agreement relates;
(viii) Indebtedness, not secured by or subject to any Lien (except as shall, in the ordinary course of business, be backed by cash or cash equivalents), in respect of performance, completion, guaranty, surety and similar bonds, banker's acceptances, bills of exchange or letters of credit provided or to be endorsed by PCI, the Company or any of their respective Subsidiaries in the ordinary course of business;
(ix) Indebtedness, not secured by or subject to any Lien, in respect of (i) any guaranty (not otherwise referred to above) provided by PCI, the Company or any of their respective Subsidiaries in respect of any other Indebtedness permitted to be incurred hereunder; provided, however, that if such Indebtedness guaranteed is (x) subordinated in right of payment to any other Indebtedness of the Indenture Obligor thereof, then such guaranty shall be subordinated to Indebtedness of such guarantor to the same extent, and (y) secured by a Lien otherwise permitted pursuant to Section 1012, then such guaranty may be so secured, (ii) indemnities in favor of Persons issuing title insurance policies, (iii) indemnifications in the Transaction Documents and in any agreements contemplated thereunder or thereby, (iv) indemnities in the Organizational Documents of PCI and its Subsidiaries, and (v) customary indemnities given to a purchaser of assets from the Company; provided that any counterparty that the sale of such assets by the Company is a Lender shall be deemed satisfactory permitted pursuant to the Administrative Agentterms hereof;
(cx) Indebtedness existing on the Closing Date and listed on Schedule 10.1Indebtedness, and not secured by or subject to any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted SubsidiariesLien, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at which becomes a Subsidiary of the time Company incurred and outstanding on or prior to the date on which such Person became was acquired as a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow)Company; provided that (i) on the date of such Indebtedness matures acquisition and after giving effect thereto, the Consolidated Fixed Charge Coverage Ratio of the Company for the most recently ended four full Fiscal Quarters for which internal financial statements are available immediately preceding the date of such incurrence would have been at least six (6) months equal to 2.5:1.0 determined on a pro forma basis after the later giving effect, in each case, to occur such acquisition which makes that Person a Subsidiary of the Revolving Credit Maturity Date Company, and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) immediately after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence acquisition of such Indebtedness and after giving effect theretoPerson, no Default or Event of Default shall exist or occur and be continuing and (iv) the documentation governing such Indebtedness contains customary market termscontinuing;
(mxi) additional Indebtedness subject to Liens permitted by Section 1012 (including purchase money Indebtedness and Attributable Indebtedness in respect of Sale and Leaseback Transactions);
(xii) Indebtedness incurred in respect of New Other Secured Notes and Claims;
(xiii) Subordinated Indebtedness, not secured Indebtedness not otherwise permitted pursuant by or subject to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively)any Lien; provided that (i) on the amount date of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Subordinated Indebtedness and after giving effect thereto, the Consolidated Fixed Charge Coverage Ratio of the Company for the most recently ended four full Fiscal Quarters immediately preceding the date of such incurrence would have been at least equal to 1.75:1.0 determined on a pro forma basis, and (ii) immediately after giving effect to such Indebtedness, no Default or Event of Default shall exist have occurred and be continuing;
(xiv) any refinancing, refunding, deferral, renewal or be continuing extension (each, a "Refinancing") of any Indebtedness of any Obligor or any Obligor Subsidiary permitted by subsections (ii), (iii), (iv), (x) and (ivxii) notwithstanding (the Consolidated Total Leverage Ratio at "Refinancing Indebtedness"); provided, however, that (a) such time, a Springing Lien Event shall be deemed to have occurred upon Refinancing Indebtedness does not exceed the use aggregate principal amount of the $250,000,000 basket pursuant Indebtedness so refinanced, plus the amount of any premium required to clause be paid in connection with such Refinancing in accordance with the terms of such Indebtedness or the amount of any premium reasonably determined by such Obligor as necessary to accomplish such Refinancing, plus the amount of reasonable and customary out-of-pocket fees and expenses payable in connection therewith, (b) the Refinancing Indebtedness does not provide for any mandatory redemption, amortization or sinking fund requirement in an amount greater than or at a time prior to the amounts and times specified in the Indebtedness being refinanced, refunded, deferred, renewed or extended and (c) if the Indebtedness being refinanced, refunded, deferred, renewed or extended is subordinated to the Indebtedness of the Obligor or Obligor Subsidiaries under the Securities, the Refinancing Indebtedness incurred to refinance, refund, defer, renew or extend such Indebtedness is subordinated in right of payment to the Obligations on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being so refinanced, refunded, deferred, renewed or extended; or
(xv) in addition to Indebtedness permitted by clauses (i) above in an aggregate amount greater than $150,000,000 through (xiii) of this Section 1008, Indebtedness of such Obligors and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Obligor Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing100 taken together, in an aggregate principal amount outstanding not to exceed $25,000,000. For all purposes of 200,000 at any time outstanding; provided, however, that no Indebtedness permitted to be incurred pursuant to this Agreement, if an item of Indebtedness meets Section 1008 (except for the criteria of more than one of the above clauses, the Borrower (iExit Facility or any refinancing thereof permitted under this Indenture) shall have contain any terms that are more restrictive on or to the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount obligor of such Indebtedness to more than one of such clausesthose set forth in this Indenture, (iii) may elect in its sole discretion to apportion such Indebtedness between whether taken individually or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedas a whole.
Appears in 1 contract
Sources: Indenture (Pioneer Companies Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Specified Hedge Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement which is entered into for interest rate, foreign currency, commodity or other business purposes and not for speculative purposes, with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided provided, that any counterparty that is a Lender or an Affiliate thereof shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed not otherwise permitted under this Section, as set forth on Schedule 10.16.1(t), and any Refinancing Indebtedness the renewal, refinancing, extension and replacement (but not the increase in respect the aggregate principal amount) thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance LeasesCapital Leases in an aggregate amount, together with the aggregate amount of all purchase money Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (e) below, not to exceed $20,000,000 on any date of determination;
(e) purchase money Indebtedness of the Borrower and its Restricted SubsidiariesSubsidiaries with respect to the purchase of Equipment in an aggregate amount, together with the aggregate amount of all Indebtedness of the Borrower and its Subsidiaries incurred pursuant to subsection (d) above, not to exceed $20,000,000 on any Refinancing Indebtedness in respect thereofdate of determination;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the other Secured Parties;
(hg) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section; provided that neither the Borrower nor any guarantee of Refinancing Indebtedness Guarantor shall only be permitted if it meets to incur Guaranty Obligations under this subsection (g) with respect to Indebtedness of any Subsidiary that is not a Guarantor ;
(h) Indebtedness owed by (i) any Guarantor to the requirements of Borrower, (ii) the definition of Refinancing IndebtednessBorrower to any Guarantor, (iii) any Guarantor to any other Guarantor, (iv) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, (v) any Subsidiary that is not a Guarantor to the Borrower or any Guarantor in an amount not to exceed $500,000, or (vi) the Borrower or any Guarantor to any Subsidiary that is not a Guarantor in an amount not to exceed $500,000;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Borrower and its Restricted Subsidiaries incurred pursuant to the issuance of Qualified Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after in the later to occur case of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence each issuance of such Indebtedness, (iii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ivii) the documentation governing Administrative Agent shall have received satisfactory written evidence that the Borrower would be in compliance with all covenants contained in this Agreement on a pro forma basis after giving effect to the issuance of any such Indebtedness contains customary market terms;Indebtedness; and
(mj) additional secured Indebtedness not otherwise permitted pursuant to this Section unsecured Subordinated Indebtedness; provided that in an aggregate amount outstanding not to exceed an amount equal to ten percent the case of each issuance of such Subordinated Indebtedness, (10%i) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) have occurred and be continuing or would be caused by the amount issuance of such secured Subordinated Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, and (ii) such Indebtedness matures at least six (6) months after the later to occur of Administrative Agent shall have received satisfactory written evidence that the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as Borrower would be in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and compliance with all covenants contained in this Agreement on a pro forma basis after giving effect theretoto the issuance of any such Subordinated Indebtedness; provided, that no Default agreement or Event instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use any Subsidiary of the $250,000,000 basket pursuant Borrower to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice make any payment to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any Guarantor (in the form of its Restricted Subsidiariesdividends, including Indebtedness represented by letters of credit intercompany advances or otherwise) for the account purpose of enabling the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by to pay the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedObligations.
Appears in 1 contract
Sources: Credit Agreement (Lmi Aerospace Inc)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1The Company will not Incur, and any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was Company will not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or permit any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) to Incur, directly or indirectly, any Indebtedness of or Disqualified Stock if, on the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds date of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness Incurrence and after giving effect thereto, the Consolidated Leverage Ratio exceeds 2.0 to 1.0.
(b) Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(1) Permitted Warehouse Indebtedness and Guarantees by the Company of any Permitted Warehouse Indebtedness of Restricted Subsidiaries, provided that (i) on the date of such Incurrence and giving effect to any such Incurrence, the aggregate principal amount of Permitted Warehouse Indebtedness permitted under this clause (1), together with the amount of all then outstanding Warehouse Indebtedness (other than Permitted Warehouse Indebtedness) of the Company and its Restricted Subsidiaries permitted under clause (a) above, shall not exceed 300% of Consolidated Net Worth at such time, and (ii) that to the extent any such Indebtedness ceases to constitute Permitted Warehouse Indebtedness of the Company or a Restricted Subsidiary, such event shall be deemed to constitute the Incurrence of such Indebtedness (and any such Guarantees, but without duplication) by the Company or such Subsidiary, as the case may be;
(2) the Notes and the Subsidiary Guarantees;
(3) Hedging Obligations directly related to: (i) Indebtedness permitted to be Incurred by the Company or the Restricted Subsidiaries pursuant to this Section; (ii) Receivables held by the Company or its Restricted Subsidiaries pending sale or that have been sold pursuant to a Warehouse Facility; or (iii) Receivables with respect to which the Company or any Restricted Subsidiary has an outstanding purchase or offer commitment, financing commitment or security interest;
(4) Indebtedness outstanding on the Issue Date (other than Permitted Warehouse Indebtedness and Guarantees thereof, which shall be permissible under this paragraph (b) only pursuant to clause (1) above);
(5) Indebtedness or Disqualified Stock issued to and held by the Company or a Wholly Owned Restricted Subsidiary; provided, however, that any subsequent issuance or transfer of any Capital Stock that results in any such Wholly Owned Restricted Subsidiary ceasing to be a Wholly Owned Restricted Subsidiary or any subsequent transfer of such Indebtedness or Disqualified Stock (other than to the Company or a Wholly Owned Restricted Subsidiary) will be deemed, in each case, to constitute the Incurrence of such Indebtedness or issuance of such Disqualified Stock by the issuer thereof;
(6) Indebtedness or Disqualified Stock of a Restricted Subsidiary Incurred on or prior to the date on which such Subsidiary was acquired by the Company, other than Indebtedness or Disqualified Stock Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company; provided, however, that on the date of such acquisition and after giving effect thereto, the Company would have been able to Incur at least $1.00 of Indebtedness pursuant to paragraph (a) above; and
(7) while no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such exists, Refinancing Indebtedness contains customary market terms;
(m) additional secured in respect of Indebtedness not otherwise permitted Incurred pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses paragraph (a) and or clause (4) or (6) of this paragraph (b).
(c) Notwithstanding the foregoing, respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of Company and its Restricted Subsidiaries may not Incur any Indebtedness (other than the Notes and the Subsidiary Guarantees) if such secured Indebtedness that is recourse subordinate or junior in ranking in any respect to any Credit Party shall not exceed $250,000,000Senior Indebtedness unless such Indebtedness is a Junior Subordinated Obligation, (ii) the Company and its Restricted Subsidiaries shall not Incur any Indebtedness if the proceeds thereof are used, directly or indirectly, to Refinance any Junior Subordinated Obligations unless such Indebtedness matures shall be subordinated to the Notes or the Subsidiary Guarantees, as applicable, to at least six (6) months after the later to occur of the Revolving Credit Maturity Date same extent as such Junior Subordinated Obligations, and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such no Restricted Subsidiary that is not a Subsidiary Guarantor shall incur, directly or indirectly, any Indebtedness. Unsecured Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be is not deemed to have occurred upon be subordinate or junior to secured Indebtedness merely because it is unsecured.
(d) For purposes of determining compliance with the use of the $250,000,000 basket pursuant to clause foregoing: (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in the ordinary course of business; provided event that the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(o) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, the Company, in good faith, will classify such item of Indebtedness and be required to include the amount and type of such Indebtedness in one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, ; and (ii) shall not an item of Indebtedness may be required to allocate the amount of such Indebtedness to divided and classified in more than one of such clauses, (iii) may elect in its sole discretion to apportion such the types of Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifieddescribed above.
Appears in 1 contract
Sources: Indenture (Mego Mortgage Corp)
Limitations on Indebtedness. Create, incur, assume or suffer to exist any Indebtedness except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b));
(b) Indebtedness incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to the Administrative Agent;
(c) Indebtedness existing on the Closing Date and listed on Schedule 10.1The Company will not Incur, and the Company will not permit any Refinancing Indebtedness in respect thereof;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
(e) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary to Incur, directly or assets were acquired from such Personindirectly, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) any Unsecured Senior Indebtedness owed by any Credit Party to another Credit Party;
unless (jA) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of Adjusted Consolidated Leverage Ratio, on the Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notes, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds date of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness Incurrence and after giving effect thereto, does not exceed 1.0 to 1.0, (B) the Consolidated Leverage Ratio, on the date of such Incurrence and after giving effect thereto, does not exceed 2.0 to 1.0, (C) the Stated Maturity of such Indebtedness is at least 91 days after the Stated Maturity of the Notes, and (D) the Average Life of such Indebtedness is longer than the Average Life of the Notes, or (ii) any Indebtedness (other than Unsecured Senior Indebtedness) or Disqualified Stock if, on the date of such Incurrence and after giving effect thereto, the Consolidated Leverage Ratio exceeds 2.0 to 1.0.
(b) Notwithstanding the foregoing paragraph (a), the Company and its Restricted Subsidiaries may Incur the following Indebtedness:
(1) Permitted Warehouse Indebtedness and Guarantees by the Company of any Permitted Warehouse Indebtedness of Restricted Subsidiaries, PROVIDED that to the extent any such Indebtedness ceases to constitute Permitted Warehouse Indebtedness of the Company or a Restricted Subsidiary, such event shall be deemed to constitute the Incurrence of such Indebtedness (and any such Guarantees, but without duplication) by the Company or such Subsidiary, as the case may be;
(2) the Notes and the Subsidiary Guarantees;
(3) Hedging Obligations directly related to: (i) Indebtedness permitted to be Incurred by the Company or the Restricted Subsidiaries pursuant to this Section; (ii) Receivables held by the Company or its Restricted Subsidiaries pending sale or that have been sold pursuant to a Warehouse Facility; or (iii) Receivables with respect to which the Company or any Restricted Subsidiary has an outstanding purchase or offer commitment, financing commitment or security interest;
(4) Indebtedness outstanding on the Issue Date (other than Permitted Warehouse Indebtedness and Guarantees thereof, which shall be permissible under this paragraph (b) only pursuant to clause (1) above);
(5) Indebtedness or Disqualified Stock issued to and held by the Company or a Wholly Owned Restricted Subsidiary; PROVIDED, HOWEVER, that any subsequent issuance or transfer of any Capital Stock that results in any such Wholly Owned Restricted Subsidiary ceasing to be a Wholly Owned Restricted Subsidiary or any subsequent transfer of such Indebtedness or Disqualified Stock (other than to the Company or a Wholly Owned Restricted Subsidiary) will be deemed, in each case, to constitute the Incurrence of such Indebtedness or issuance of such Disqualified Stock by the issuer thereof;
(6) Indebtedness or Disqualified Stock of a Restricted Subsidiary Incurred on or prior to the date on which such Subsidiary was acquired by the Company, other than Indebtedness or Disqualified Stock Incurred in connection with, or to provide all or any portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary or was acquired by the Company; PROVIDED, HOWEVER, that on the date of such acquisition and after giving effect thereto, the Company would have been able to Incur at least $1.00 of Indebtedness pursuant to paragraph (a) above; and
(7) while no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such exists, Refinancing Indebtedness contains customary market terms;
(m) additional secured in respect of Indebtedness not otherwise permitted Incurred pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses paragraph (a) and or clause (4) or (6) of this paragraph (b).
(c) Notwithstanding the foregoing, respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date Company and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries in may not Incur any Indebtedness (other than the ordinary course of business; provided that Notes and the underlying obligation to perform is that of the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not in respect of borrowed money;
(oSubsidiary Guarantees) Indebtedness of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that if such Indebtedness is extinguished within five (5) Business Days of incurrence; and
(q) to the extent constituting Indebtedness, liabilities in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassified.subordinate
Appears in 1 contract
Limitations on Indebtedness. CreateNeither COP III nor any Project Borrower shall assume, create, incur, assume or suffer permit to exist or guaranty any Indebtedness or contingent obligations, except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 10.1(b))Obligations;
(b) Indebtedness incurred trade obligations and normal accruals in connection with the ordinary course of business not yet due and payable (or being contested in a Hedging Agreement with a counterparty and upon terms and conditions manner provided in paragraph (including interest rateb)(i) reasonably satisfactory to through (iii) of the Administrative Agent; provided that any counterparty that is a Lender shall be deemed satisfactory to definition of “Permitted Exceptions” or as otherwise permitted in the Administrative AgentLoan Documents);
(c) the JPM Indebtedness existing and the Indebtedness outstanding on the Closing Date date hereof and listed on Schedule 10.1previously disclosed in writing to Lender, and any Refinancing refinancings, refundings, renewals or extensions thereof; provided that the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in respect thereofconnection with such refinancing and by an amount equal to any existing commitments unutilized thereunder;
(d) Indebtedness of the Borrower and its Restricted Subsidiaries incurred in connection with Finance Leases;
obligations (econtingent or otherwise) purchase money Indebtedness of the Borrower and its Restricted Subsidiaries, and any Refinancing Indebtedness in respect thereof;
(f) Indebtedness of a Person existing at the time such Person became a Restricted Subsidiary or assets were acquired from such Person, to the extent such Indebtedness was not incurred in connection with or in contemplation of, such Person becoming a Restricted Subsidiary or the acquisition of such assets and any Refinancing Indebtedness in respect thereof, in an aggregate amount not to exceed $100,000,000 at any time outstanding;
(g) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Secured Parties;
(h) Guaranty Obligations with respect to Indebtedness permitted pursuant to this Section; provided that any guarantee of Refinancing Indebtedness shall only be permitted if it meets the requirements of the definition of Refinancing Indebtedness;
(i) Indebtedness owed by any Credit Party to another Credit Party;
(j) Indebtedness of the Borrower or any Restricted Subsidiary consisting of Qualified Trust Indebtedness;
(k) Indebtedness of the Project Borrower and its Restricted Subsidiaries pursuant to the Senior Unsecured Notesexisting or arising under any Swap Contract, and any Refinancing Indebtedness in respect thereof that is unsecured (except that Refinancing Indebtedness issued to refinance any of the Senior Unsecured Notes may be secured by the proceeds of such Refinancing Indebtedness if such Refinancing Indebtedness initially closes into escrow, but only while such proceeds are held in escrow);
(l) additional Indebtedness of the Borrower or its Restricted Subsidiaries that is unsecured (except that Indebtedness in the form of senior unsecured notes that otherwise meet the requirements set forth in the last sentence of the definition of “Senior Unsecured Notes” may be secured by the proceeds of such Indebtedness if such Indebtedness initially closes into escrow, but only while such proceeds are held in escrow); provided that (i) such Indebtedness matures at least six obligations are (6or were) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of entered into by such Indebtedness, (ii) after giving effect to the incurrence of any such Indebtedness on a pro forma basis, as if such incurrence of Indebtedness had occurred on the first day of the twelve month period ending on the last day of the Borrower’s then most recently completed fiscal quarter, the Borrower and its Restricted Subsidiaries would have been in compliance with all the financial covenants set forth in Article IX, and the Borrower shall have delivered to the Administrative Agent a certificate of its chief financial officer or treasurer to such effect setting forth in reasonable detail the computations necessary to determine such compliance, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) the documentation governing such Indebtedness contains customary market terms;
(m) additional secured Indebtedness not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed an amount equal to ten percent (10%) of Consolidated Tangible Assets, determined, with respect to each incurrence of Indebtedness pursuant to this Section 10.1(m), as of the most recently-ended fiscal quarter for which financial statements have been furnished pursuant to clauses (a) and (b), respectively, of Section 7.1 (it being understood that this Section 10.1(m) is a limitation on such Indebtedness on a prospective basis only and that no Default or Event of Default shall occur under this Section 10.1(m) retroactively); provided that (i) the amount of such secured Indebtedness that is recourse to any Credit Party shall not exceed $250,000,000, (ii) such Indebtedness matures at least six (6) months after the later to occur of the Revolving Credit Maturity Date and the Initial Term Loan Maturity Date as in effect at the time of the incurrence of such Indebtedness, (iii) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall exist or be continuing and (iv) notwithstanding the Consolidated Total Leverage Ratio at such time, a Springing Lien Event shall be deemed to have occurred upon the use of the $250,000,000 basket pursuant to clause (i) above in an aggregate amount greater than $150,000,000 and the Borrower shall provide notice to the Administrative Agent thereof pursuant to Section 7.4(h);
(n) Indebtedness incurred by the Borrower or any of its Restricted Subsidiaries, including Indebtedness represented by letters of credit for the account of the Borrower or any Restricted Subsidiary, in respect of workers’ compensation claims, self-insurance obligations, performance, proposal, completion, surety and similar bonds and completion guarantees provided by the Borrower or its Restricted Subsidiaries Person in the ordinary course of business; provided that business for the underlying purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to perform is that of make payments on outstanding transactions to the Borrower or one of its Restricted Subsidiaries and not that of any other Person and, provided, further, that such underlying obligation is not defaulting party;
(e) Indebtedness in respect of borrowed money;
(o) Indebtedness capital leases and purchase money obligations for fixed or capital assets; provided, however, that the aggregate amount of the Borrower consisting of customary indemnification, deferred purchase price adjustments or similar obligations, in each case, incurred or assumed in connection with the acquisition of any business or assets permitted to be acquired hereunder;
(p) Indebtedness of the Borrower or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business, provided that all such Indebtedness is extinguished within five (5) Business Days of incurrenceat any one time outstanding shall not exceed $1,000,000.00; and
(qf) to the extent constituting Indebtedness, liabilities Guaranties in connection with property assessed clean energy financing or similar financing relating to energy efficiency, renewable energy and other eligible improvements, including, property assessed clean energy (PACE) financing, in an aggregate amount outstanding not to exceed $25,000,000. For all purposes of this Agreement, if an item respect of Indebtedness meets the criteria of more than one of the above clauses, the Borrower (i) shall have the right to determine in its sole discretion the clause to which such Indebtedness is to be allocated, (ii) shall not be required to allocate the amount of such Indebtedness to more than one of such clauses, (iii) may elect in its sole discretion to apportion such Indebtedness between or among any two or more of such clauses, and (iv) may reallocate or reclassify all or any part of such Indebtedness between or among any one or more of such clauses at any time and from time to time, provided that, at the time such reallocation or reclassification, such Indebtedness meets the requirements of the clause to which reallocated or reclassifiedother performance obligations otherwise permitted hereunder.
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Sources: Borrowing Base Revolving Line of Credit Agreement (Cole Credit Property Trust III, Inc.)