Limitations on Indebtedness. Directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following (collectively, “Permitted Indebtedness”): (a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not to exceed $410,000,000; (b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness); (c) Permitted AdditionalSecured Ratio Indebtedness; (d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below); (e) Indebtedness of the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary; (f) Guaranty Obligations incurred by: (i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor); (ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party; (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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time; (v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business; (vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”; (viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and (ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent; (g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets; (h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities); (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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and (ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded; (j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12; (k) [Intentionally omitted]; (l) 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; (m) [Intentionally omitted]; (n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement); (o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date; (p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business; (q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence; (r) 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”; (s) 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 that were issued in connection with the 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; (t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder; (u) 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; (v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements; (w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction; (x) 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 such participations; and (y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; and
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not Obligations (excluding Hedging Obligations permitted pursuant to exceed $410,000,000Section 11.1(b));
(b) Indebtedness of incurred in connection with a Hedging Agreement (i) with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Parent Borrower Administrative Agent or any of its Restricted Subsidiaries incurred (ii) required pursuant to this Agreement and Section 9.12; provided, that any counterparty that is a Lender shall be deemed reasonably satisfactory to the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness existing on the Closing Date and not otherwise permitted under this Section and listed on Schedule 7.1(u), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on Guaranty Obligations in favor of the Closing Date, Administrative Agent for the benefit of the Administrative Agent and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)the Lenders;
(e) Unsecured:
(i) Subordinated Indebtedness owed by any Credit Party to another Credit Party,
(ii) Subordinated Indebtedness owed by any Credit Party to a Foreign Subsidiary,
(iii) Indebtedness owed by a Foreign Subsidiary to any Credit Party; provided that the aggregate amount of such Indebtedness outstanding at any time pursuant to this clause (iii) shall not exceed the Foreign Investment Limitation (calculated without regard to clause (b) of the Parent definition of Foreign Investment Limitation and excluding the Existing Canadian Note) as of any date of determination,
(iv) Indebtedness owed by a Foreign Subsidiary to another Foreign Subsidiary,
(v) Subordinated Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their estates, spouses or former spouses) of the Borrower or any Restricted Subsidiary to purchase or redeem Capital Stock of the Parent Borrower permitted by Section 11.6(d); and
(vi) Guaranty Obligations by the Borrower on behalf of any Credit Party or any other Restricted SubsidiaryForeign Subsidiary up to $1,000,000;
(f) Guaranty Obligations incurred byIndebtedness pursuant to the following clauses (i) through (v) (and any extension, renewal, replacement or refinancing thereof, but not to increase the aggregate principal amount); provided that at the time such Indebtedness is incurred, the Administrative Agent and the Lenders shall have received from the Borrower an Officer's Compliance Certificate in form and substance satisfactory to the Administrative Agent (including an Adjusted Consolidated EBITDA Reconciliation for the fiscal period covered by such Officer's Compliance Certificate), demonstrating that, after giving effect to the incurrence of any such Indebtedness, the Borrower will be in pro forma compliance with the financial covenants set forth in Section 10.2, Section 10.3 and Section 10.5, if applicable at such time:
(i) Indebtedness of the Parent Borrower or any and its Subsidiaries incurred in connection with Capital Leases and/or purchase money Indebtedness of the Borrower and its Restricted Subsidiaries in respect an aggregate amount not to exceed $25,000,000 on any date of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor)determination;
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan PartyPerson existing at the time such Person became a 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 Subsidiary or the acquisition of such assets, not to exceed in the aggregate at any time outstanding $10,000,000;
(iii) a Non-Loan Party in Guaranty Obligations with respect to Indebtedness permitted pursuant to subsection (f) of Indebtedness of another Non-Loan Party that is permitted hereunderthis Section;
(iv) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person (other than a Foreign Subsidiaries, not to exceed in the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any timetime outstanding $2,000,000; provided that no Default or Event of Default shall have occurred and be continuing, or result therefrom, as of the date of incurrence of any such Indebtedness;
(v) additional unsecured or Subordinated Indebtedness not otherwise permitted pursuant to this Section in connection an aggregate amount outstanding not to exceed $200,000,000; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness, (ii) the Borrower shall have complied with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to leasesthe applicable requirements of Section 4.4(b), and guarantees (iii) such Indebtedness shall mature no earlier than the date which is six (6) months following the later of collectability (x) the Term Loan Maturity Date and (y) the Revolving Credit Maturity Date, (iv) the terms of such Indebtedness shall comply with the terms of Section 11.11 hereof and (v) such Indebtedness shall otherwise contain terms, conditions, representations and warranties customary for such type of Indebtedness at the time such Indebtedness is incurred.
(g) Indebtedness incurred in respect of accounts receivable or notes receivable for up to face value;
(vi) consisting of accommodation workers' compensation claims, self-insurance obligations, bankers' acceptances, performance, surety and similar bonds and completion guarantees for provided by the benefit of trade creditors of the Parent Borrower or any one of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument in the ordinary course of business inadvertently drawn against insufficient funds and which funds, provide however, that such Indebtedness is extinguished within five (5) Business Days of its incurrence;Days; and
(ri) Indebtedness of arising from any agreement by the Parent Borrower or any of its Restricted Subsidiaries in respect of Financing Leases which have been funded solely by Investments providing for indemnities, guarantees, purchase price adjustments, holdbacks, contingency payment obligations based on the performances of the Parent Borrower and its Restricted Subsidiaries permitted under clause (r) of the definition of “Permitted Investments”;
(s) Indebtedness of the Parent Borrower acquired or any of its Restricted Subsidiaries arising in connection with industrial development or revenue bonds disposed assets or similar obligations secured incurred by property or assets leased to and operated by the Parent Borrower or such Restricted Subsidiary that were issued any Person in connection with the financing acquisition or refinancing disposition of such property assets or assets, provided, that, the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $25,000,000;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced Capital Stock as permitted by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total AssetsAgreement.; and
Appears in 1 contract
Sources: Credit Agreement (Globalstar, Inc.)
Limitations on Indebtedness. Directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following (collectively, “Permitted Indebtedness”):
(a) Indebtedness evidenced by The Parent will at all times keep and maintain the Senior Secured Notes ratio of Consolidated Funded Debt Documents in an aggregate principal amount to Consolidated Total Capitalization at not more than 0.6 to exceed $410,000,000;1.0.
(b) The Parent will at all times keep and maintain the ratio of Consolidated Specified Indebtedness to Consolidated Stockholders' Equity at not more than 2.5 to 1.0.
(c) The Parent and its Subsidiaries will not create, assume, guarantee or otherwise incur or in any manner be or become liable in respect of any Indebtedness secured by Liens permitted by e5.10(l), unless 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 sum of (1) all Indebtedness of the Parent Borrower or any of and its Restricted Subsidiaries secured by Liens permitted by e5.10(l) plus (2) all Specified Indebtedness incurred by Non-Obligor Subsidiaries pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(ce5.9(d)(6) Permitted AdditionalSecured Ratio Indebtedness;
(d) Indebtedness (other than Specified Indebtedness permitted by clauses of such Non-Obligor Subsidiary which is included in clause (a1) through (c) immediately above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary;
(f) Guaranty Obligations incurred byshall not exceed:
(i) the Parent Borrower or any 15% of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a)Consolidated Stockholders' Equity, (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries the release of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refundedLincoln National Liens; and
(ii) clause 25% of Consolidated Stockholders' Equity, at all times after the release of the Lincoln National Liens.
(a)d) The Constituent Companies will not permit any Non-Obligor Subsidiary to, create, assume, guarantee or otherwise incur or in any manner be or become liable in respect of any Specified Indebtedness, except:
(c1) or (o) hereof or this clause (i)(ii); provided, however, that (A) any such renewal, extension, refinancing or refunding is in an aggregate principal amount not greater than Capitalized Leases entered into the principal amount (or accreted value, if applicable) normal and ordinary course of the business of such Non-Obligor Subsidiary;
(2) Specified Indebtedness so renewed, extended, refinanced owed to a Constituent Company or refunded to a Wholly-owned Subsidiary;
(plus accrued interest, any premium and reasonable commission, fees and expenses), (B3) no Loan Party that is not obligated Indebtedness in connection with or related to Industrial Development Bonds or a reimbursement obligation with respect to repayment a letter of credit, insurance or other credit enhancement securing such Industrial Development Bonds;
(4) Specified Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, assumed at the time of issuance acquisition or incurrencepurchase of any business entity, so long as such Specified Indebtedness was not incurred, extended or renewed in contemplation of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced such acquisition or refundedpurchase;
(j5) Specified Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted secured by Subsection 8.12;Liens permitted by e5.10
(a) through (k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; and
Appears in 1 contract
Sources: Note Agreement (Unitog Co)
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section 11.1(b));
(b) Indebtedness evidenced incurred in connection with a Hedging Agreement, in each case, incurred in the ordinary course of business and not for speculative purposes;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 7.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the US Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount not to exceed $10,000,000 on any date of determination;
(e) purchase money Indebtedness of the US Borrower and its Subsidiaries in an aggregate amount not to exceed $10,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders;
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) or subsection (p) of this Section;
(h) Indebtedness owed (i) by the Senior Secured Notes Debt Documents 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 other 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 Foreign Subsidiary to the 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 later to occur of the Revolving Credit Maturity Date or the Term Loan Maturity Date;
(j) 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 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 Subordinated Indebtedness;
(k) additional Indebtedness of the US Borrower and the Subsidiary Guarantors not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $5,000,000;
(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 the extent incurred in the ordinary course of business;
(o) Guaranty Obligations consisting of an unsecured limited guaranty of certain of the obligations of Northpark Corporate Center, L.L.C. pursuant to that certain $9,400,000 loan agreement by and between Northpark Corporate Center, L.L.C. and ▇▇▇▇▇ Fargo Bank, National Association; provided that such Guaranty Obligations shall be (i) in an aggregate principal amount not to exceed $410,000,000;
9,400,000 and (bii) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement evidenced by a guaranty agreement in form and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Permitted AdditionalSecured Ratio Indebtedness;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any Restricted Subsidiary substance satisfactory to the Parent Borrower or any other Restricted Subsidiary;
(f) Guaranty Obligations incurred by:Administrative Agent; and
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time February 2007 Notes and (ii) any refinance of the February 2007 Notes or any additional unsecured Indebtedness issued under, or by a supplement to, the February 2007 Note Purchase Agreement or any similar note purchase agreement or other debt instrument; provided that such Financing Lease Obligations and refinancing or additional unsecured Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower on terms and conditions that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amountare, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(i) renewalstaken as a whole, 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 consistent with the principal amount (or accreted value, if applicable) then-current market terms and conditions of such Indebtedness so renewed, extended, refinanced or refunded type of unsecured debt (plus accrued interest, any premium and reasonable commission, fees and expensesas reasonably determined in good faith by the board of directors of the US Borrower) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as less favorable to the Lenders than the terms of the February 2007 Notes (as those reasonably determined by the Administrative Agent); provided further that were applicable with respect to any Indebtedness incurred pursuant to clause (ii), (1) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance thereof, (2) the Administrative Agent shall have received satisfactory written evidence that the US Borrower and its Subsidiaries would be in compliance with all covenants in this Agreement on a pro forma basis after giving effect to the renewedissuance thereof, extended, refinanced or refunded Indebtedness and (D3) such Indebtedness has (x) a stated the maturity date that is (i) at least 91 days after the Termination Date and (ii) not of such senior Indebtedness shall be no earlier than the stated maturity date Indebtedness (if any) being refinanced and in any event shall be at least six (6) months after each of the Revolving Credit Maturity Date and the Term Loan Maturity Date; provided, that no agreement or instrument with respect to Indebtedness that is renewedpermitted to be incurred by this Section shall restrict, extended, refinanced limit or refunded and otherwise encumber (yby covenant or otherwise) a weighted average life, at the time ability of issuance or incurrence, any Subsidiary of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent any Borrower or to make any Restricted Subsidiary payment to Holdings, the Parent such Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course form of business;
(qdividends, intercompany advances or otherwise) Indebtedness arising from for the honoring purpose of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) Indebtedness of enabling such Borrower to pay 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total AssetsObligations.; and
Appears in 1 contract
Sources: Credit Agreement (Pool Corp)
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not Obligations (excluding Hedging Obligations permitted pursuant to exceed $410,000,000Section 10.1(b));
(b) Indebtedness of incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Parent Borrower or Administrative Agent; provided, that any of its Restricted Subsidiaries incurred pursuant counterparty that is a Lender shall be deemed satisfactory to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness existing on the Closing Date and not otherwise permitted under this Section and listed on Schedule 10.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness (other than and Indebtedness permitted by clauses (a) through (c) above) existing incurred in connection with Capital Leases in an aggregate amount not to exceed $25,000,000 on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)date of determination;
(e) Indebtedness Guaranty Obligations of any Subsidiary in favor of the Parent Borrower or any Restricted Subsidiary to Administrative Agent for the Parent Borrower or any other Restricted Subsidiarybenefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or of any of its Restricted Subsidiaries in Subsidiary with respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of to Indebtedness permitted pursuant to clauses subsections (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (ivd) 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 Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extentthis Section;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or (i) of a Restricted Person that becomes a Subsidiary of the Parent Borrower to finance after the acquisitionClosing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, leasingand the refinancing, construction or improvement of fixed assetsrefunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewalx) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, extensionor in connection with, refinancing such Person becoming a Subsidiary or refunding pursuant to clause such assets being acquired and (i) belowy) shall not exceed $30,000,000 at 20,000,000 in the aggregate on any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days date of such acquisition or leasing or completion of construction or improvement of such assetsdetermination;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up owed by any Subsidiary Guarantor to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities)another Credit Party;
(i) renewalsSubordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, extensions, refinancings and refundings of Indebtedness (in whole or in part) permitted by:
(i) clause (d) no Default or (g) above Event of Default shall have occurred and be continuing 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 would be caused by the principal amount (or accreted value, if applicable) issuance of such Subordinated Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of Administrative Agent shall have received satisfactory written evidence that the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, compliance with all covenants contained in this Agreement 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 issuance of any such incurrence or assumption, the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Subordinated Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(pj) Indebtedness in respect of the Parent Borrower performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or any of its Restricted Subsidiaries incurred to finance insurance premiums other similar obligations arising in the ordinary course of business, and any refinancings thereof to the extent not provided to secure the repayment of other Indebtedness;
(qk) Indebtedness arising from the honoring of owed by any Subsidiary that is not a check, draft or similar instrument against insufficient funds and which Credit Party to any other Subsidiary that is extinguished within five Business Days of its incurrencenot a Credit Party;
(rl) (i) Indebtedness of owed by any Credit Party to any Subsidiary which is not a Credit Party or by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on 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 Closing Date and its Restricted Subsidiaries permitted under clause (r) of the definition of “Permitted Investments”;
(sii) Indebtedness of owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Parent Borrower or Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any of its Restricted Subsidiaries arising in connection with industrial development or revenue bonds or similar obligations secured by property or assets leased Subsidiary which is not a Credit Party to and operated by the Parent Borrower or such Restricted Subsidiary that were issued in connection with the financing or refinancing of such property or assets, any Credit Party; provided, that, if requested by the Administrative Agent, such Indebtedness shall be payable on demand; provided further that the aggregate principal amount of all such intercompany Indebtedness outstanding at permitted pursuant to the foregoing clauses (A) and (B), together with any time intercompany Indebtedness, equity or capital investments permitted pursuant to Section 10.3(h), in each case incurred or made after the Closing Date, shall not exceed $25,000,00050,000,000 outstanding on any date of determination (which amount shall be calculated as the net balance of such loans, advances and equity and capital investments as reduced by any repayments or distributions made with respect thereto);
(tm) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, senior unsecured Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) Indebtedness in respect of any letters of credit issued in favor of any Issuing Lender or the Swingline Lender not 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 such participationsexceed $250,000,000; and
(yn) other additional Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred otherwise permitted pursuant to subclause (ii) shall this Section in an aggregate amount outstanding not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assetsexceed $25,000,000.; and
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) the Obligations (including the Guaranty Obligations with respect thereto);
(b) unsecured intercompany Indebtedness evidenced owed by:
(i) any Credit Party to any other Credit Party;
(ii) any Credit Party to any Subsidiary that is not a Credit Party;
(iii) any Subsidiary that is not a Credit Party to any Credit Party:
(A) existing on the Closing Date (as set forth on Schedule 11.1(b)(iii)); and
(B) incurred after the Closing Date in an aggregate principal amount not to exceed at any time outstanding (1) $40,000,000 less (2) the amount of Guaranty Obligations incurred pursuant to Section 11.1(i) on the applicable date of determination less (3) the amount of Investments made in the form of Permitted Acquisitions pursuant to Section 11.3(e)(ii) during the term of this Agreement on the applicable date of determination less (4) the amount of Investments made pursuant to Section 11.3(g) during the term of this Agreement on the applicable date of determination; and
(iv) any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(c) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the Senior Secured Notes Debt Documents ordinary course of business;
(d) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person, 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 of its Subsidiaries (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 amount of such Indebtedness does not exceed $10,000,000 at any time outstanding;
(e) Indebtedness incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed $25,000,000 at any time outstanding;
(f) Indebtedness and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(g) Guaranty Obligations of the Borrower or any of its Subsidiaries with respect to Indebtedness permitted pursuant to subsections (a), (e) and (f) of this Section;
(i) Indebtedness of the Borrower or any of its Subsidiaries incurred in connection with Facility Capital Expenditures made on its own behalf in an aggregate amount not to exceed $50,000,000 at any time outstanding and (ii) to the extent that such Indebtedness is incurred by a Credit Party, Guaranty Obligations of any other Credit Party with respect to such Indebtedness (it being agreed and acknowledged by all parties hereto that, except to the extent permitted under subsection (i) below, to the extent that such Indebtedness is incurred by a Subsidiary that is not a Credit Party, no Credit Party shall be permitted to guaranty such Indebtedness);
(i) Guaranty Obligations of any Credit Party with respect to Indebtedness of any Subsidiary that is not a Credit Party in an aggregate amount not to exceed at any time outstanding (A) $40,000,000 less (B) the amount of Investments made in the form of Permitted Acquisitions pursuant to Section 11.3(e)(ii) during the term of this Agreement on the applicable date of determination less (C) the amount of Investments made in the form of Indebtedness pursuant to Section 11.3(f)(iv) during the term of this Agreement on the applicable date of determination less (D) the amount of Investments made pursuant to Section 11.3(g) during the term of this Agreement on the applicable date of determination; and
(j) additional Indebtedness not otherwise permitted pursuant to this Section in an aggregate principal amount not to exceed $410,000,000;
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Permitted AdditionalSecured Ratio Indebtedness;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount 5,000,000 at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; and
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not Obligations (excluding Hedging Obligations permitted pursuant to exceed $410,000,000Section 11.1(b));
(b) Indebtedness of incurred in connection with a Hedging Agreement (i) with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Parent Borrower Administrative Agent or any of its Restricted Subsidiaries incurred (ii) required pursuant to this Agreement and Section 9.12; provided, that any counterparty that is a Lender shall be deemed reasonably satisfactory to the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness existing on the Amended and Restated Closing Date and not otherwise permitted under this Section and listed on Schedule 7.1(u), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on Guaranty Obligations in favor of the Closing Date, Administrative Agent for the benefit of the Administrative Agent and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)the Lenders;
(e) Unsecured:
(i) Subordinated Indebtedness owed by any Credit Party to another Credit Party,
(ii) Subordinated Indebtedness owed by any Credit Party to a Foreign Subsidiary,
(iii) Indebtedness owed by a Foreign Subsidiary to any Credit Party; provided that the aggregate amount of such Subordinated Indebtedness outstanding at any time pursuant to this clause (iii) shall not exceed the Foreign Investment Limitation (calculated without regard to clause (b) of the Parent definition of Foreign Investment Limitation and excluding the Existing Canadian Note) as of any date of determination,
(iv) Indebtedness owed by a Foreign Subsidiary to another Foreign Subsidiary, and
(v) Subordinated Indebtedness consisting of promissory notes issued to current or former officers, directors and employees (or their estates, spouses or former spouses) of the Borrower or any Restricted Subsidiary to purchase or redeem Capital Stock of the Parent Borrower or any other Restricted Subsidiarypermitted by Section 11.6(d);
(f) Guaranty Obligations incurred byIndebtedness pursuant to the following clauses (i) through (v) (and any extension, renewal, replacement or refinancing thereof, but not to increase the aggregate principal amount); provided that at the time such Indebtedness is incurred, the Administrative Agent and the Lenders shall have received from the Borrower an Officer's Compliance Certificate in form and substance satisfactory to the Administrative Agent (including an Adjusted Consolidated EBITDA Reconciliation for the fiscal period covered by such Officer's Compliance Certificate), demonstrating that, after giving effect to the incurrence of any such Indebtedness, the Borrower will be in pro forma compliance with the financial covenants set forth in Section 10.2, Section 10.3, Section 10.4 and Section 10.5 and demonstrating compliance with the Incurrence Test set forth in Section 10.1:
(i) Indebtedness of the Parent Borrower or any and its Subsidiaries incurred in connection with Capital Leases and/or purchase money Indebtedness of the Borrower and its Restricted Subsidiaries in respect an aggregate amount not to exceed $25,000,000 on any date of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor)determination;
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan PartyPerson existing at the time such Person became a 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 Subsidiary or the acquisition of such assets, not to exceed in the aggregate at any time outstanding $10,000,000;
(iii) a Non-Loan Party in Guaranty Obligations with respect to Indebtedness permitted pursuant to subsection (f) of Indebtedness of another Non-Loan Party that is permitted hereunderthis Section;
(iv) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of any Person (other than a Foreign Subsidiaries, not to exceed in the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any timetime outstanding $2,000,000; provided that no Default or Event of Default shall have occurred and be continuing, or result therefrom, as of the date of incurrence of any such Indebtedness;
(v) additional unsecured Indebtedness not otherwise permitted pursuant to this Section in connection an aggregate amount outstanding not to exceed $200,000,000; provided that in the case of each issuance of such Indebtedness, (i) no Default or Event of Default shall have occurred and be continuing or would be caused by the issuance of such Indebtedness and (ii) the Borrower shall have complied with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to leases, and guarantees the applicable requirements of collectability Section 4.4(b);
(g) Indebtedness incurred in respect of accounts receivable or notes receivable for up to face value;
(vi) consisting of accommodation workers' compensation claims, self-insurance obligations, bankers' acceptances, performance, surety and similar bonds and completion guarantees for provided by the benefit of trade creditors of the Parent Borrower or any one of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument in the ordinary course of business inadvertently drawn against insufficient funds and which funds, provide however, that such Indebtedness is extinguished within five (5) Business Days of its incurrence;Days; and
(ri) Indebtedness of arising from any agreement by the Parent Borrower or any of its Restricted Subsidiaries in respect of Financing Leases which have been funded solely by Investments providing for indemnities, guarantees, purchase price adjustments, holdbacks, contingency payment obligations based on the performances of the Parent Borrower and its Restricted Subsidiaries permitted under clause (r) of the definition of “Permitted Investments”;
(s) Indebtedness of the Parent Borrower acquired or any of its Restricted Subsidiaries arising in connection with industrial development or revenue bonds disposed assets or similar obligations secured incurred by property or assets leased to and operated by the Parent Borrower or such Restricted Subsidiary that were issued any Person in connection with the financing acquisition or refinancing disposition of such property assets or assets, provided, that, the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $25,000,000;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced Capital Stock as permitted by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total AssetsAgreement.; and
Appears in 1 contract
Sources: Credit Agreement (Globalstar, Inc.)
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not Obligations (excluding Hedging Obligations permitted pursuant to exceed $410,000,000Section 11.1(b));
(b) Indebtedness of incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Parent Borrower or Administrative Agent; provided that any of its Restricted Subsidiaries incurred pursuant counterparty that is a Lender shall be deemed satisfactory to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness existing on the Restatement Date and not otherwise permitted under this Section and listed on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness (other than and Indebtedness permitted by clauses (a) through (c) above) existing incurred in connection with Capital Leases in an aggregate amount not to exceed $40,000,000 on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)date of determination;
(e) Indebtedness Guaranty Obligations of any Subsidiary in favor of the Parent Borrower or any Restricted Subsidiary to Administrative Agent for the Parent Borrower or any other Restricted Subsidiarybenefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or of any of its Restricted Subsidiaries in Subsidiary with respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of to Indebtedness permitted pursuant to clauses subsections (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (ivd) 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 Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extentthis Section;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or (i) of a Restricted Person that becomes a Subsidiary of the Parent Borrower to finance after the acquisitionRestatement Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, leasingand the refinancing, construction or improvement of fixed assetsrefunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewalx) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, extensionor in connection with, refinancing such Person becoming a Subsidiary or refunding pursuant to clause such assets being acquired and (i) belowy) shall not exceed $30,000,000 at 35,000,000 in the aggregate on any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days date of such acquisition or leasing or completion of construction or improvement of such assetsdetermination;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up owed by any Subsidiary Guarantor to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities)another Credit Party;
(i) renewalsSubordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, extensions, refinancings and refundings of Indebtedness (in whole or in part) permitted by:
(i) clause (d) no Default or (g) above Event of Default shall have occurred and be continuing 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 would be caused by the principal amount (or accreted value, if applicable) issuance of such Subordinated Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of Administrative Agent shall have received satisfactory written evidence that the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower Borrowers would be in compliance, compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the consummation issuance of any such acquisition 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 ordinary course of business, and any refinancings thereof to the incurrence extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) 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 assumption of such Indebtednesscapital investments permitted pursuant to Section 11.3(h)(ii), with Subsection 8.1 recomputed in each case incurred or made after the Restatement Date, shall not exceed, as of the last day of date such Indebtedness is incurred, made or increased, $225,000,000; provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the most recently ended fiscal quarter of Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Parent Borrower for which and its Subsidiaries shall be in pro forma compliance (as of the 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 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 date occurring one (1) year following the Revolving Credit Maturity Date; (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial statements are available, performance “maintenance” covenants (whether or not compliance with Subsection 8.1 is otherwise required at such time (it being understood that, stated as a condition precedent 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 effectiveness 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 any such incurrence or assumption, Indebtedness the Parent Borrower shall deliver have delivered to the Administrative Agent a certificate of from a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any certifying as to compliance with the requirements of its Restricted Subsidiaries incurred the preceding clauses (i) through (vii) above and containing calculations, in form and substance reasonably satisfactory to finance insurance premiums in the ordinary course of businessAdministrative Agent with respect to clause (i) above;
(qn) Indebtedness arising from with respect to the honoring of a check2026 Senior Notes (including any guarantees thereof), draft in an aggregate amount not to exceed $400,000,000, or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) Indebtedness any modification, refinancing, refunding, renewal or extension 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 2026 Senior Notes (r) of the definition of “Permitted Investments”;
(s) 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 that were issued in connection with the financing or refinancing of such property or assets, provided, that, but not increasing the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $25,000,000;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participationsthereof); and
(yo) other additional Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred otherwise permitted pursuant to subclause (ii) shall this Section in an aggregate amount outstanding not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assetsexceed $75,000,000.; and
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following (collectively, “Permitted Indebtedness”):
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not to exceed $410,000,000;
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Permitted AdditionalSecured Ratio Indebtedness;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing DateThe Company will not, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or will not permit any Restricted Subsidiary to the Parent Borrower to, Incur, directly or indirectly, any other Restricted Subsidiary;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that the Company may Incur Indebtedness if any Indebtedness referred the Consolidated EBITDA Coverage Ratio at the date of such Incurrence and after giving effect thereto exceeds 2.25 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 Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;1.0.
(gb) Financing Lease Obligations and Notwithstanding paragraph (a), the following Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall may be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;Incurred:
(h1) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up Company pursuant to an aggregate outstanding principal amount, which shall not exceed one or more Credit Facilities (and the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 guarantee of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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)(iby Restricted Subsidiaries); provided, however, that (A) any such renewal, extension, refinancing or refunding is in an the aggregate principal amount not greater than the principal amount (or accreted value, if applicable) of such Indebtedness so renewedoutstanding at such time shall not exceed $350,000,000, extended, refinanced or refunded less any amounts derived from Asset Sales and applied to the required permanent reduction of Senior Indebtedness (plus accrued interest, any premium and reasonable commission, fees and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity permanent reduction of the related commitment to lend or amount available to be reborrowed in the case of a revolving credit facility) under such Credit Facilities as contemplated by Section 4.15; (2) Indebtedness so renewed, extended, refinanced of the Company or refunded; and
(ii) clause (a), (c) a Restricted Subsidiary owed to and held by a Restricted Subsidiary or (o) hereof or this clause (i)(ii)Indebtedness of a Restricted Subsidiary owed to and held by the Company; provided, however, that (A) any subsequent issuance or transfer of any Capital Stock that results in such renewal, extension, refinancing Restricted Subsidiary to whom Indebtedness is owed ceasing to be a Restricted Subsidiary or refunding is in an aggregate principal amount not greater than the principal amount (or accreted value, if applicable) any transfer of such Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the ObligationsCompany or another Restricted Subsidiary) shall be deemed, then in each case, to constitute the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption Incurrence 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; and
Appears in 1 contract
Sources: Indenture (R&b Falcon Corp)
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not Obligations (excluding Hedging Obligations permitted pursuant to exceed $410,000,000Section 11.1(b));
(b) Indebtedness of incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Parent Borrower or Administrative Agent; provided, that any of its Restricted Subsidiaries incurred pursuant counterparty that is a Lender shall be deemed satisfactory to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness existing on the Third Amendment Effective Date and not otherwise permitted under this Section and listed on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness (other than and Indebtedness permitted by clauses (a) through (c) above) existing incurred in connection with Capital Leases in an aggregate amount not to exceed $40,000,000 on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)date of determination;
(e) Indebtedness Guaranty Obligations of any Subsidiary in favor of the Parent Borrower or any Restricted Subsidiary to Administrative Agent for the Parent Borrower or any other Restricted Subsidiarybenefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or of any of its Restricted Subsidiaries in Subsidiary with respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of to Indebtedness permitted pursuant to clauses subsections (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (ivd) 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 Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extentthis Section;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or (i) of a Restricted Person that becomes a Subsidiary of the Parent Borrower to finance after the acquisitionClosing Date in connection with any Permitted Acquisition or (ii) assumed in connection with any assets acquired in connection with any Permitted Acquisition, leasingand the refinancing, construction or improvement of fixed assetsrefunding, renewal and extension (but not the increase in the aggregate principal amount) thereof; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewalx) exists at the time such Person becomes a Subsidiary or such assets are acquired and is not created in contemplation of, extensionor in connection with, refinancing such Person becoming a Subsidiary or refunding pursuant to clause such assets being acquired and (i) belowy) shall not exceed $30,000,000 at 35,000,000 in the aggregate on any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days date of such acquisition or leasing or completion of construction or improvement of such assetsdetermination;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up owed by any Subsidiary Guarantor to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities)another Credit Party;
(i) renewalsSubordinated Indebtedness; provided that in the case of each issuance of Subordinated Indebtedness, extensions, refinancings and refundings of Indebtedness (in whole or in part) permitted by:
(i) clause (d) no Default or (g) above Event of Default shall have occurred and be continuing 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 would be caused by the principal amount (or accreted value, if applicable) issuance of such Subordinated Indebtedness so renewed, extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of Administrative Agent shall have received satisfactory written evidence that the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, compliance with all covenants contained in this Agreement on a Pro Forma Basis after giving effect to the consummation issuance of any such acquisition 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 ordinary course of business, and any refinancings thereof to the incurrence extent not provided to secure the repayment of other Indebtedness;
(k) Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) (i) Indebtedness owed by any Credit Party to any Subsidiary which is not a Credit Party or assumption by any Subsidiary which is not a Credit Party to a Credit Party, in each case, existing on the Closing Date, (ii) the S1 Intercompany Loans in an aggregate principal amount not to exceed $200,000,000, (iii) the TargetCo Intercompany Loans in an aggregate principal amount not exceed $35,000,000 and (iv) Indebtedness owed by (A) any Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (B) any Subsidiary which is not a Credit Party to any Credit Party; provided that the aggregate amount of all such Indebtednessintercompany Indebtedness permitted pursuant to the foregoing clauses (A) and (B), together with Subsection 8.1 recomputed any equity or capital investments permitted pursuant to Section 11.3(h)(ii), in each case incurred or made after the Third Amendment Effective Date, shall not exceed, as of the last day date such Indebtedness is incurred, made or increased, the greater of (A) $75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)); provided, further, that, any Indebtedness owed to any Credit Party pursuant to this clause (l) shall be evidenced by a promissory note in form and substance reasonably satisfactory to the Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents;
(m) senior unsecured Indebtedness; provided, that: (i) the Borrower and its Subsidiaries shall be in pro forma compliance (as of the most recently ended fiscal quarter date of the Parent 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 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, in either case prior to the date occurring one (1) year following the latest of the Revolving Credit Maturity Date, the Term Loan Maturity Date or any maturity date of any Incremental Term Loan (in effect as of the date such Indebtedness is incurred) and such Indebtedness shall have a weighted average life to maturity that is no shorter than the weighted average life to maturity of each of the then outstanding Term Loans (provided that any Indebtedness that automatically converts to, or is exchangeable into, notes or other Indebtedness that meet this clause (iv) shall be deemed to satisfy this condition so long as the Borrower for which irrevocably agrees at the time of the issuance thereof to take all actions necessary to convert or exchange such Indebtedness); (v) the indenture or other applicable agreement governing such Indebtedness (including any related guaranties and any other related documentation) shall not include any financial statements are available, performance “maintenance” covenants (whether or not compliance with Subsection 8.1 is otherwise required at such time (it being understood that, stated as a condition precedent 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 effectiveness 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 any such incurrence or assumption, Indebtedness the Borrower shall deliver have delivered to the Administrative Agent a certificate of from a Responsible Officer setting forth of the Borrower certifying as to compliance with the requirements of the preceding clauses (i) through (vii) above and containing calculations, in reasonable detail the calculations demonstrating such compliance), (iii) before form and after giving effect thereto, no Specified Default or any other Event of Default known substance reasonably satisfactory to the Borrowers has occurred and is continuing, and (iv) Administrative Agent with respect to any newly incurred Indebtedness, clause (i) above and (ix) to the extent such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the financing or refinancing of such property or assets, provided, thatexceeds $350,000,000, the aggregate principal amount of such Indebtedness outstanding at any time excess shall not exceed $25,000,000;
(t) Indebtedness of be used to prepay the Parent Borrower or any of its Restricted Subsidiaries Loans in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participationsaccordance with Section 4.5(b)(i); and
(yn) other additional Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred otherwise permitted pursuant to subclause (ii) shall this Section in an aggregate amount outstanding not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assetsexceed $75,000,000.; and
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following (collectively, “Permitted Indebtedness”):
(a) Indebtedness evidenced (i) incurred by any Loan Party or Escrow Subsidiary pursuant to 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) $1,075,000,000 plus (B) the Maximum Incremental Facilities Amount and (ii) incurred pursuant to the Senior Secured Notes Debt Documents in an aggregate principal amount not to exceed $410,000,000;500,000,000.
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, including any Accordion Incremental Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Permitted AdditionalSecured Ratio IndebtednessUnsecured Indebtedness of 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, and disclosed on Schedule 8.13(d) (), together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any of its Restricted Subsidiary Subsidiaries secured pursuant to the Parent Borrower or any other Restricted SubsidiarySubsection 8.14(p);
(f) Guaranty Guarantee Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Guarantee Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (om) shall be permitted only to the extent that such Guaranty Guarantee Obligations are incurred by Guarantors (other than, in the case of clause (om), Guaranty Guarantee Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness lease obligations of a Non-Loan PartyParties (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 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 than a 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) $190,000,000 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) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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;
(vii) the Parent Borrower or any of its Restricted Subsidiaries in respect of Investments expressly permitted pursuant to clauses clause (c), (j), (l), (m), ) or (wv) of the definition of “Permitted Investments”;
(viii) the Parent Borrower or any of its Restricted Subsidiaries in respect of (x) Management Guarantees and (y) third-party loans and advances to officers or employees of any Parent Entity, Holdings, IPO Vehicle or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses clause (l) or (m) of the definition of “Permitted Investments”;
(ix) the Parent Borrower or any of its Restricted Subsidiaries in respect of Reimbursement Obligations in respect of Letters of Credit or with respect to reimbursement obligations in respect of any other letters or credit permitted under this Agreement;
(x) the Parent Borrower or any of its Restricted Subsidiaries in respect of performance, bid, appeal, surety, judgment, replevin and similar bonds, other suretyship arrangements, other similar obligations and letters of credit, bankers’ acceptances or similar instruments or obligations, all in, or relating to liabilities or obligations incurred in, the ordinary course of business; and
(ixxi) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and 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” the Dollar Equivalent of which ”, does not exceed $25,000,00030,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Guarantee Obligations shall be subordinated and the Liens securing the corresponding Guaranty 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; provided, however, that (i) the aggregate outstanding principal amount of all any such Financing Lease Purchase Money Obligations and Indebtedness (together with incurred to finance the acquisition of Capital Stock of any renewal, extension, refinancing or refunding Person at any time outstanding pursuant to this clause (i) belowg) shall not exceed an amount equal to the greater of $30,000,000 at any time 75,000,000 and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days 10.00% of such acquisition or leasing or completion of construction or improvement of such assetsConsolidated Tangible Assets;
(h) Indebtedness of any Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries Subsidiary in support of working capital needs up to an aggregate principal amount at any time outstanding principal amount, which shall not exceed exceeding an amount equal to the sum of (x) the greater of (i) $30,000,000 125,000,000 and 16.50% of Consolidated Tangible Assets and (iiy) an amount equal to 3.0% (A) the Foreign Borrowing Base plus (B) in the event of Consolidated Total Assets at any time refinancing of any Indebtedness incurred under this clause (provided that an additional $10,000,000 y), the aggregate amount of such Indebtedness shall be permitted to be outstanding at any time fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with overdraft and similar facilities)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 fees, underwriting discounts and expensesother 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), (c) or (om) 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 fees, underwriting discounts and other costs and expenses, incurred in connection with such refinanced Indebtedness), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewedoriginally incurred under clause (a) or (m), extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity Stated Maturity date that is (i) at least 91 days after the Termination Date and or (ii) in respect of Indebtedness with a Stated Maturity earlier than 91 days after the Termination Date, not earlier than the stated maturity Stated Maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) only with respect to Restricted Indebtedness (excluding for this purpose any Restricted Indebtedness the proceeds of which were used to refinance, refund, replace, renew, repay, restructure or extend the Senior Notes or any refinancing thereof, that was incurred under any provision of this Subsection 8.13 other than this Subsection 8.13(i)(ii)), a weighted average lifelife 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 refundedrefunded (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)(i)(B) by meeting the Consolidated Secured Leverage Ratio (as defined in the Term Loan Credit Agreement), 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 Holdings, 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) [Intentionally omitted];
(l) 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 SubsidiariesSubsidiaries (including any Cash Management Arrangements);
(m) [Intentionally omitted];
(nl) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Plumb Acquisition Agreement);
(om) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 recomputed as of the last day of the most recently ended fiscal quarter 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), (iiiii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers Borrower Representative has occurred and is continuing, and (iviii) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption maturity or similar requirement amortization rate greater than 1.0% per annum prior to the date that is six months 91 days after the Termination DateDate (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);
(pn) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(qo) Indebtedness (A) arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days in the ordinary course of its incurrencebusiness or (B) consisting of guarantees, indemnities, obligations in respect of earn-outs or other purchase price adjustments, or similar obligations, incurred in connection with the acquisition or disposition of any business, assets or Person;
(rp) 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”;
(sq) 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 that were issued in connection with the financing or refinancing of such property or assets, provided, that, that the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $25,000,000;
(tr) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(us) 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;
(vt) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements, Hedging Agreements and under other Permitted Hedging Arrangements;
(wu) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(xv) 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 such participations; and;
(yw) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) Subsidiaries; provided that the greater of (i) $50,000,000 and (ii) the aggregate amount equal to 4% of the Consolidated Total Assets in aggregate principal amount outstanding at any time outstanding; provided that of such Indebtedness incurred or assumed pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; andw), when aggregated with all other Indebtedness incurred or assumed and outstanding pursuant to
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly The Company will not, and will not permit any Consolidated Subsidiary to, create, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced of any Consolidated Subsidiary which is, or the direct or indirect parent of which is, acquired by the Senior Secured Notes Debt Documents Company or any other Consolidated Subsidiary after March 22, 2006, which Indebtedness is in an aggregate principal amount existence at the time such Consolidated Subsidiary (or parent) is so acquired; provided that such Indebtedness was not created at the request or with the consent of the Company or any Subsidiary, and such Indebtedness may not be extended other than pursuant to exceed $410,000,000the terms thereof as in existence at the time such Consolidated Subsidiary (or parent) was acquired;
(b) Indebtedness of created under the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Documents;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness existing on the Restatement Effective Date and set forth on Schedule 5.10 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;
(d) Indebtedness (of the Company to any Consolidated Subsidiary and of any Consolidated Subsidiary to the Company or any other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause Consolidated Subsidiary; provided that (i) below);
(e) such Indebtedness of shall not have been transferred to any Person other than the Parent Borrower or any Restricted Subsidiary to the Parent Borrower Company or any other Restricted Consolidated Subsidiary;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a any such Indebtedness owing by any Loan Party (other than Holdings) in respect of Indebtedness of to a Non-Loan Party;
(iii) a Nonnon-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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) in connection with sales or other dispositions permitted under Subsection 8.5, including indemnification obligations with respect to leases, shall be unsecured and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(vi) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or on terms customary for intercompany subordinated Indebtedness, as reasonably determined by the Administrative Agent, and (iii) any such Indebtedness owing by any Consolidated Subsidiary that is secured by Liens not a Loan Party to any Loan Party shall be incurred in compliance with Section 5.17;
(e) Guarantees incurred in compliance with Section 5.17;
(f) the incurrence of Indebtedness under Hedging Agreements that are senior incurred for the bona fide purpose of hedging the interest rate, commodity, or subordinate to any Liens securing foreign currency risks associated with the Collateral, then any corresponding Guaranty Obligations shall be subordinated operations of the Company or such Consolidated Subsidiary and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extentnot for speculative purposes;
(g) Financing Lease Obligations Indebtedness owed in respect of any overdrafts and Indebtedness incurred by the Parent Borrower related liabilities arising from treasury, depository and cash management services or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together in connection with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) automated clearing-house transfers of funds; provided that such Financing Lease Obligations and Indebtedness shall be incurred prior to or repaid in full within 180 days five Business Days of such acquisition or leasing or completion of construction or improvement of such assetsthe incurrence thereof;
(h) Indebtedness in respect of Foreign Subsidiaries letters of credit, bank guarantees and similar instruments issued for the account of the Parent Borrower that are Restricted Subsidiaries Company or any Consolidated Subsidiary in support the ordinary course of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of business supporting obligations under (i) $30,000,000 workers’ compensation unemployment insurance and other social security laws and (ii) an amount equal to 3.0% bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and obligations of Consolidated Total Assets at any time a like nature (provided that an additional $10,000,000 other than in respect of such Indebtedness other obligations for borrowed money), which obligations in each case shall not be permitted to be outstanding at any time in connection with overdraft and similar facilities)secured except by Permitted Encumbrances;
(i) renewalsIndebtedness to finance the acquisition, construction or improvements 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 acquisition thereof, and extensions, refinancings renewals 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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment replacements of such Indebtedness that is renewed, extended, refinanced do not increase the outstanding principal amount thereof or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated result in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated an earlier maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining decreased weighted average life of the Indebtedness thereof, provided that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the financing or refinancing of such property or assets, provided, that, the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $25,000,000300,000,000 at any time outstanding;
(tj) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries Subsidiary (other than any Subsidiary Loan Party) in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunderan aggregate principal amount not exceeding $400,000,000;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(yk) other Indebtedness of the Parent Borrower Company or any of its Restricted Subsidiaries Subsidiary Loan Party in an aggregate principal amount not exceeding $750,000,000;
(when incurred l) other Indebtedness of the Company or assumed) the greater of any Subsidiary Loan Party; provided that (i) $50,000,000 after giving pro forma effect thereto, the ratio of Consolidated Debt to Consolidated EBITDAR for the most recently completed Test Period is less than 4.00 to 1.00; provided, further that the Administrative Agent shall have received a certificate, dated the date such Indebtedness is incurred and (ii) the amount equal to 4% signed by a Financial Officer of the Consolidated Total Assets Company, confirming compliance with the requirements set forth in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (yl) solely because and setting forth a reasonably detailed calculation of a later decrease in such ratio of Consolidated Total Assets.Debt to Consolidated EBITDAR;
(m) other unsecured Indebtedness of the Company or any Consolidated Subsidiary; and
(n) Indebtedness of Receivables Subsidiaries arising under Specified Receivables Facilities.
Appears in 1 contract
Sources: Amended and Restated Revolving Credit Agreement (Bath & Body Works, Inc.)
Limitations on Indebtedness. Directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following (collectively, “Permitted Indebtedness”):
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not to exceed $410,000,000;
(a) [Intentionally omitted];
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Permitted AdditionalSecured Secured Ratio Indebtedness;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(i) renewals, extensions, refinancings refinancings, replacements 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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c), (k) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted]omitted];Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to the First Lien Credit Facility, pursuant to the Second Lien Credit Facility and pursuant to any Additional Obligations Documents in an aggregate principal amount not to exceed (A) $670,000,000 plus (B) the Maximum First Lien Incremental Facilities Amount plus (C) the Maximum Second Lien Incremental Facilities Amount;
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured secured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and;
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; and
(z) unsecured Indebtedness of Parent Borrower and its Restricted Subsidiaries. For purposes of determining compliance with this Subsection 8.13, in the event that any Indebtedness meets the criteria of more than one of the types of Indebtedness described in clauses (a) through (y) above, the Parent Borrower, in its sole discretion, shall classify such item of Indebtedness and may include the amount and type of such Indebtedness in one or more of such clauses (including in part under one such clause and in part under another such clause). Furthermore, for purposes of this definition, the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on customary currency exchange rates in effect, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness), on the date that such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed (i) the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not Obligations (excluding Hedging Obligations permitted pursuant to exceed $410,000,000Section 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 or an Affiliate of a Lender shall be deemed satisfactory to the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing of the US Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount not to exceed $5,000,000 on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)date of determination;
(e) purchase money Indebtedness of the Parent US Borrower or and its Subsidiaries in an aggregate amount not to exceed $5,000,000 on any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiarydate of determination;
(f) Guaranty Obligations incurred by:in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders;
(ig) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in with respect of to Indebtedness permitted pursuant to clauses subsections (a)) through (e) of this Section;
(h) Indebtedness owed (i) by the US Borrower to any Subsidiary Guarantor, (cii) and (o) shall be permitted only by any Subsidiary Guarantor to the extent that such Guaranty Obligations are incurred by Guarantors US Borrower, (other than, in the case of clause (o), Guaranty Obligations incurred iii) by any Foreign Subsidiary Guarantor to any other Subsidiary Guarantor, or (iv) by any Subsidiary that is not a Subsidiary Guarantor to any other Subsidiary that is not a Subsidiary Guarantor);
(iii) a Loan Party (other than Holdingsso 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 Foreign Subsidiary to the 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 10.3(i) and 10.5(f), does not exceed $60,000,000 in respect the aggregate during the term of Indebtedness of a Non-Loan Partythis Agreement;
(iiij) 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 Non-Loan Party in respect pro forma basis after giving effect to the issuance of Indebtedness of another Non-Loan Party that is permitted hereunderany such Subordinated Indebtedness;
(ivk) the Parent Borrower or any of its Restricted Subsidiaries in respect of additional Indebtedness of any Person (other than a the Parent US Borrower or any of its Restricted Subsidiaries) up and the Subsidiary Guarantors not otherwise permitted pursuant to a maximum this Section in an aggregate amount outstanding principal amount not exceeding to exceed $10,000,000 at any time5,000,000;
(vl) 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 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 valuean Accounts Securitization;
(vim) consisting endorsements of accommodation guarantees negotiable instruments for the benefit of trade creditors of the Parent Borrower deposit or any of its Restricted Subsidiaries collection in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) unsecured Indebtedness in respect of any letters of credit issued performance bonds, worker’s compensation claims, surety or appeal bonds and payment obligations in favor of any Issuing Lender connection with self insurance or the Swingline Lender to support any Defaulting Lender’s participation in Letters of Credit or Swingline Loans as provided for in Subsection 3.4similar obligations, in each case to the extent not exceeding incurred in the maximum amount ordinary course of such participationsbusiness; and
(yo) other Indebtedness consisting of all obligations, contingent or otherwise, of the Parent US Borrower or any of its Restricted Subsidiaries not exceeding relative to the face amount of the Independent Letters of Credit, whether drawn or undrawn, including, without limitation, any reimbursement obligations in connection with the Independent Letters of Credit. provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (when incurred by covenant or assumedotherwise) the greater ability of any Subsidiary of any Borrower to make any payment to such Borrower or any of its Subsidiaries (iin the form of dividends, intercompany advances or otherwise) $50,000,000 and (ii) for the amount equal purpose of enabling such Borrower to 4% of pay the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total AssetsObligations.; and
Appears in 1 contract
Sources: Credit Agreement (SCP Pool Corp)
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not Obligations (excluding Hedging Obligations permitted pursuant to exceed $410,000,000Section 10.1(b));
(b) Indebtedness of incurred in connection with a Hedging Agreement with a counterparty and upon terms and conditions (including interest rate) reasonably satisfactory to the Parent Borrower or Administrative Agent; provided, that any of its Restricted Subsidiaries incurred pursuant counterparty that is a Lender shall be deemed satisfactory to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness existing on the Closing Date and not otherwise permitted under this Section and listed on Schedule 10.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) purchase money Indebtedness (other than and Indebtedness permitted by clauses (a) through (c) above) existing incurred in connection with Capital Leases in an aggregate amount not to exceed $10,000,000 on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)date of determination;
(e) Indebtedness Guaranty Obligations of any Subsidiary in favor of the Parent Borrower or any Restricted Subsidiary to Administrative Agent for the Parent Borrower or any other Restricted Subsidiarybenefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations incurred by:of any Subsidiary with respect to Indebtedness permitted pursuant to subsections (a) through (d) of this Section;
(g) Indebtedness (i) of a Person that becomes a Subsidiary of the Borrower after the Closing 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 $10,000,000 in the aggregate on any date of determination;
(h) Indebtedness owed by any Subsidiary Guarantor to another Credit Party;
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunderSubordinated Indebtedness; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause each issuance of Subordinated Indebtedness, (o), Guaranty Obligations incurred 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 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 Foreign Subsidiary that is not a Guarantor)such Subordinated Indebtedness;
(iij) a Loan Party (other than Holdings) Indebtedness in respect of Indebtedness performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) in connection with sales credit, surety bonds or other dispositions permitted under Subsection 8.5, including indemnification similar obligations with respect to leases, and guarantees of collectability in respect of accounts receivable or notes receivable for up to face value;
(vi) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries arising in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries thereof to the extent not provided to secure the Investment in such Indebtedness is not restricted by Subsection 8.12repayment of other Indebtedness;
(k) [Intentionally omitted]Indebtedness owed by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(l) Indebtedness incurred under owed by (i) any agreement Credit Party to any Subsidiary which is not a Credit Party; provided that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent and (ii) any Subsidiary which is not a Credit Party to any Credit Party; provided, that, if requested by the Administrative Agent, such Indebtedness shall be payable on demand; provided further that the aggregate amount of all such intercompany Indebtedness permitted pursuant to the foregoing clauses (i) and (ii) and equity or capital investments permitted pursuant to Section 10.3(h), in each case incurred or made after the Closing Date, shall not exceed $50,000,000 outstanding on any date of determination (which a Person provides cash management services amount shall be calculated as the net balance of such loans, advances and equity and capital investments as reduced by any repayments or similar financial accommodations to the Parent Borrower or any of its Restricted Subsidiariesdistributions made with respect thereto);
(m) [Intentionally omitted];so long as no Default or Event of Default has occurred and is continuing or would result therefrom, unsecured Indebtedness of the Borrower; provided, that such Indebtedness shall be pari passu with the Obligations; and
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) additional Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred not otherwise permitted pursuant to finance insurance premiums this Section in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 an aggregate amount outstanding not to and operated by the Parent Borrower or such Restricted Subsidiary that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets5,000,000.; and
Appears in 1 contract
Sources: Credit Agreement (Transaction Systems Architects Inc)
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) the Obligations (including the Guaranty Obligations with respect thereto); 43360385_8
(b) unsecured intercompany Indebtedness evidenced owed by:
(i) any Credit Party to any other Credit Party;
(ii) any Credit Party to any Subsidiary that is not a Credit Party;
(iii) any Subsidiary that is not a Credit Party to any Credit Party:
(A) existing on the Closing Date (as set forth on Schedule 11.1(b)(iii)); and
(B) incurred after the Closing Date in an aggregate principal amount not to exceed at any time outstanding (1) $50,000,000 less (2) the amount of Guaranty Obligations incurred pursuant to Section 11.1(i) on the applicable date of determination less (3) the amount of Investments made in the form of Permitted Acquisitions pursuant to Section 11.3(e)(ii) during the term of this Agreement on the applicable date of determination less (4) the amount of Investments made pursuant to Section 11.3(g) during the term of this Agreement on the applicable date of determination; and
(iv) any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(c) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or other similar instrument drawn against insufficient funds in the Senior Secured Notes Debt Documents ordinary course of business;
(d) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person, 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 of its Subsidiaries (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 amount of such Indebtedness does not exceed $10,000,000 at any time outstanding;
(e) Indebtedness incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed $25,000,000 at any time outstanding;
(f) Indebtedness and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, exchange rate or commodity price risks and not for speculative purposes;
(g) Guaranty Obligations of the Borrower or any of its Subsidiaries with respect to Indebtedness permitted pursuant to subsections (a), (e) and (f) of this Section 11.1;
(i) Indebtedness of the Borrower or any of its Subsidiaries incurred in connection with Facility Capital Expenditures made on its own behalf in an aggregate amount not to exceed 43360385_8 $50,000,000 at any time outstanding and (ii) to the extent that such Indebtedness is incurred by a Credit Party, Guaranty Obligations of any other Credit Party with respect to such Indebtedness (it being agreed and acknowledged by all parties hereto that, except to the extent permitted under subsection (i) below, to the extent that such Indebtedness is incurred by a Subsidiary that is not a Credit Party, no Credit Party shall be permitted to guaranty such Indebtedness);
(i) Guaranty Obligations of any Credit Party with respect to Indebtedness of any Subsidiary that is not a Credit Party in an aggregate amount not to exceed at any time outstanding (A) $50,000,000 less (B) the amount of Investments made in the form of Permitted Acquisitions pursuant to Section 11.3(e)(ii) during the term of this Agreement on the applicable date of determination less (C) the amount of Investments made in the form of Indebtedness pursuant to Section 11.3(f)(iv) during the term of this Agreement on the applicable date of determination less (D) the amount of Investments made pursuant to Section 11.3(g) during the term of this Agreement on the applicable date of determination;
(j) Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations (including, without limitation, in respect of the ▇▇▇▇▇▇ Acquisition), in connection with acquisitions or dispositions, otherwise permitted hereunder, of any assets of a Credit Party; and
(k) additional Indebtedness not otherwise permitted pursuant to this Section 11.1 in an aggregate principal amount not to exceed $410,000,000;
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Permitted AdditionalSecured Ratio Indebtedness;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount 5,000,000 at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; and
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) the Obligations (excluding Hedging Obligations);
(b) Indebtedness evidenced incurred in connection with a Hedging Agreement, in each case, incurred in the ordinary course of business and not for speculative purposes;
(c) Indebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 11.1, and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness of the US Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount not to exceed $10,000,000 on any date of determination;
(e) purchase money Indebtedness of the US Borrower and its Subsidiaries in an aggregate amount not to exceed $10,000,000 on any date of determination;
(f) Guaranty Obligations in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders (and their Affiliates, as applicable);
(g) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (b) through (e) or subsections (p) and (q) of this Section;
(h) Indebtedness owed (i) by the Senior Secured Notes Debt Documents 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 other 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 Foreign Subsidiary to the 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) 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 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 Subordinated Indebtedness;
(k) additional Indebtedness of the US Borrower and the Subsidiary Guarantors not otherwise permitted pursuant to this Section in an aggregate amount outstanding not to exceed $10,000,000;
(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 the extent incurred in the ordinary course of business;
(o) Guaranty Obligations consisting of an unsecured limited guaranty of certain of the obligations of Northpark Corporate Center, L.L.C. pursuant to 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 $410,000,0009,400,000 and (ii) evidenced by a guaranty agreement in form and substance satisfactory to the Administrative Agent;
(bp) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Permitted AdditionalSecured Ratio Indebtedness;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”February 2007 Notes; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) Indebtedness consisting of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000Qualified Unsecured Issuances and any refinancings, refundings, renewals or extensions thereof; 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 Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, provided that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior on terms and conditions, satisfactory to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower Administrative Agent, that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 consistent with the principal amount (or accreted value, if applicable) then-current market terms and conditions of such Indebtedness so renewed, extended, refinanced or refunded type of unsecured debt (plus accrued interest, any premium and reasonable commission, fees and expensesas reasonably determined in good faith by the board of directors of the US Borrower) and (B) such Indebtedness has a weighted average maturity no shorter less favorable to the Lenders than the weighted average maturity terms of the Indebtedness so renewedQualified Unsecured Issuances, extended, refinanced or refunded; and
(ii) clause (a)no Default or Event of Default shall have occurred and be continuing or would be caused by such refinancing, refunding, renewal or extension thereof, (ciii) 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 connection with such refinancing, (oiv) hereof the final maturity date and weighted average life of such refinancing, refunding, renewal or this clause extension shall not be prior to or shorter than that applicable to the Indebtedness prior to such refinancing, refunding, renewal or extension and (i)(ii); providedv) such refinancing, howeverrefunding, that renewal or extension shall (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 and expenses)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 Loan Party that is not obligated agreement or instrument with respect to repayment Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (by covenant or otherwise) the ability of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior any Subsidiary of any Borrower to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than make any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course form of business;
(qdividends, intercompany advances or otherwise) Indebtedness arising from for the honoring purpose of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) Indebtedness of enabling such Borrower to pay 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total AssetsObligations.; and
Appears in 1 contract
Sources: Credit Agreement (Pool Corp)
Limitations on Indebtedness. Directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following (collectively, “Permitted Indebtedness”):
(a) Indebtedness evidenced (i) incurred by any Loan Party pursuant to 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) $3,495,000,000 plus (B) the Maximum Incremental Facilities Amount and (ii) incurred pursuant to the Senior Secured Notes Debt Documents in an aggregate principal amount not to exceed $410,000,000550,000,000;
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Incremental Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Permitted AdditionalSecured Unsecured Ratio Indebtedness (including, subject to meeting the Total Leverage Ratio requirement set forth in the definition of “Unsecured Ratio Indebtedness,” Additional Obligations that are unsecured);
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Third Amendment Effective Date, and disclosed on Schedule 8.13(d) (“Third Amendment Effective Date Existing Indebtedness”), together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary;
(f) Guaranty Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; and
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) the Obligations;
(b) Indebtedness evidenced and obligations owing under Hedge Agreements entered into in order to manage existing or anticipated interest rate, 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 7.21;
(d) Indebtedness incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed $30,000,000 at any time outstanding;
(e) 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 $20,000,000 at any time outstanding;
(f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (e) of this Section;
(g) unsecured intercompany Indebtedness (i) owed by the Senior Secured Notes Debt Documents any Credit Party to another Credit Party, (ii) owed by any Non-Guarantor Subsidiary to any Credit Party in an aggregate principal amount not to exceed $410,000,000;
20,000,000 at any time outstanding (b) provided that any Indebtedness of the Parent Borrower or owed by such Non-Guarantor Subsidiary to any of its Restricted Subsidiaries incurred Credit Party pursuant to this Agreement clause (ii) shall be evidenced by a demand note in form and substance reasonably satisfactory to the other Loan Documents Administrative Agent and shall be pledged and delivered to the Administrative Agent pursuant to the Security Documents), (including, without limitation, any Accordion Facility, Extension or iii) owed by any Credit Agreement Refinancing Indebtedness);
Party to any Non-Guarantor Subsidiary (cprovided, that such Indebtedness shall be subordinated to the Obligations in a manner reasonably satisfactory to the Administrative Agent) Permitted AdditionalSecured Ratio Indebtedness;
and (div) Indebtedness (other than Indebtedness permitted owed by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any Restricted Non-Guarantor Subsidiary to the Parent Borrower or any other Restricted Non-Guarantor Subsidiary;
(fh) Guaranty Obligations incurred by:
(i) Indebtedness arising from the Parent Borrower honoring by a bank or any of its Restricted Subsidiaries in respect of Indebtedness other financial institution of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a)check, (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect of Indebtedness of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) in connection with sales draft 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries similar instrument drawn against insufficient funds in the ordinary course of business;
(viii) 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 Investments expressly permitted pursuant to clauses (l), (m), or (w) any of the definition of “Permitted Investments”foregoing;
(viiij) in respect of third-party loans and advances other unsecured Indebtedness; provided that, (i) after giving effect to officers or employees of any Parent Entity, Holdingsthe incurrence thereof, the Parent Borrower or shall be in pro forma compliance with Section 10.1 (it being understood, for the avoidance of doubt, that the financial covenant set forth in Section 10.1 shall be calculated on a Pro Forma Basis) and (ii) any such Indebtedness individually in excess of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of $100,000,000 shall have a final maturity date after the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, date that is six months after the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000Term Loan Maturity Date; provided, however, that if any the aggregate principal amount of such unsecured Indebtedness referred to in clauses (i) through (iv) above which 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 Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiaries which are not Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assetsGuarantors shall at no time exceed $10,000,000; provided, however, that and
(i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Specified Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and any refinancing or replacement of the Specified Indebtedness shall be incurred prior to (or within 180 days any further refinancing or replacement of such acquisition refinancing or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries replacement of the Parent Borrower that are Restricted Subsidiaries Specified Indebtedness), so long as, in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and any case under this clause (ii) an amount equal (each being referred to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such herein as a “Specified Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilitiesRefinancing”);
(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 renewalno Default or Event of Default has occurred and is continuing or would result therefrom, extension(B) after giving effect to the incurrence thereof, refinancing or refunding is the Borrower shall be in an aggregate principal amount not greater than pro forma compliance with Section 10.1 (it being understood, for the avoidance of doubt, that the financial covenant set forth in Section 10.1 shall be calculated on a Pro Forma Basis), (C) 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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); provided, however, that (A) any such renewal, extension, refinancing or refunding is in an aggregate principal amount replacement Indebtedness shall not greater than exceed the principal amount (or accreted value, if applicable) of such the Specified Indebtedness so renewedexcept by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid (including original issue discount), extended, refinanced or refunded (plus accrued interest, any premium and reasonable commission, fees and expenses)expenses reasonably incurred, (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness connection therewith and (D) such refinancing or replacement Indebtedness has (x) shall have a stated final maturity date that is (i) at least 91 no earlier than 120 days after the Termination later of the Revolving Credit Maturity Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Term Loan Maturity Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; and
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness except for the following (collectively, “Permitted Indebtedness”):
(a) Indebtedness evidenced incurred by any Loan Party or an Escrow Subsidiary pursuant to the Senior Secured Notes 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 Documents Exchange or any Rollover Indebtedness but not pursuant to the Loan Documents) in an aggregate principal amount at any time outstanding not to exceed (i) $410,000,000415,000,000 plus (ii) the Maximum Incremental Facilities Amount;
(b) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, including any Accordion Incremental Facility, Extension or any Credit Agreement Refinancing Indebtedness);
(c) Permitted AdditionalSecured Ratio IndebtednessUnsecured Indebtedness of the Parent or any of its Restricted Subsidiaries;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (), together with any renewal, extension, refinancing or refunding pursuant to clause (i) below);
(e) Indebtedness of the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary;
(f) Guaranty Guarantee Obligations incurred by:
(i) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Guarantee Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (ok) shall be permitted only to the extent that such Guaranty Guarantee Obligations are incurred by Guarantors (other than, in the case of clause (ok), Guaranty Guarantee Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) the Parent or any of its Restricted Subsidiaries in respect of Indebtedness lease obligations of a Non-Loan PartyParties (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 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 than a Guarantee Obligations incurred and outstanding pursuant to this clause (iv) and all Indebtedness incurred and outstanding pursuant to clause (u) of this Subsection 8.13, shall not exceed the greater of (x) $100,000,000 and (y) the amount equal to 60% of Four Quarter EBITDA at the time of such Guarantee Obligations being incurred;
(v) the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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 or any of its Restricted Subsidiaries consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) the Parent or any of its Restricted Subsidiaries in respect of Investments expressly permitted pursuant to clauses clause (c), (j), (l), (m), ) or (wv) of the definition of “Permitted Investments”;
(viii) the Parent or any of its Restricted Subsidiaries in respect of (x) Management Guarantees and (y) third-party loans and advances to officers or employees of any Parent Entity, Holdings, Entity or the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses clause (l) or (m) of the definition of “Permitted Investments”;
(ix) the Parent or any of its Restricted Subsidiaries in respect of Reimbursement Obligations in respect of Letters of Credit or with respect to reimbursement obligations in respect of any other letters or credit permitted under this Agreement;
(x) the Parent 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; and
(ixxi) the Parent or any of its Restricted Subsidiaries in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and 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” the Dollar Equivalent of which ”, does not exceed $25,000,00030,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Guarantee Obligations shall be subordinated and the Liens securing the corresponding Guaranty Guarantee Obligations shall be senior or subordinate to substantially the same extent;
(gf) 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; provided, however, that (i) the aggregate outstanding principal amount of all any such Financing Lease Purchase Money Obligations and Indebtedness (together with incurred to finance the acquisition of Capital Stock of any renewal, extension, refinancing or refunding Person at any time outstanding pursuant to this clause (i) belowf) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior an amount equal to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (ix) $30,000,000 50,000,000 and (iiy) 30.0% of Four Quarter EBITDA;
(g) 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 $25,000,000 and 15% of Four Quarter EBITDA and (y) an amount equal to 3.0% (A) the Foreign Borrowing Base plus (B) in the event of Consolidated Total Assets at any time refinancing of any Indebtedness incurred under this clause (provided that an additional $10,000,000 y), the aggregate amount of such Indebtedness shall be permitted to be outstanding at any time fees, underwriting discounts, premiums and other costs and expenses (including accrued and unpaid interest) incurred or payable in connection with overdraft and similar facilities)such refinancing;
(ih) renewals, extensions, refinancings and refundings of Indebtedness (in whole or in part) permitted by:
(i) clause (d) or (gf) above or this clause (i)(i); h)(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 fees, underwriting discounts and expensesother 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), (c) or (ok) hereof or this clause (i)(iih)(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 fees, underwriting discounts and other costs and expenses, incurred in connection with such refinanced Indebtedness), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewedoriginally incurred under clause (a) or (m), extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity Stated Maturity date that is (i) at least 91 days after the Termination Date and or (ii) in respect of Indebtedness with a Stated Maturity earlier than 91 days after the Termination Date, not earlier than the stated maturity Stated Maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) only with respect to Restricted Indebtedness, a weighted average lifelife 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 refundedrefunded (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, the 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)(ii) by meeting the Consolidated Secured Leverage Ratio (as defined in the Term Loan Credit Agreement), 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;
(ji) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(lj) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments Subsidiaries (including pension plan adjustments and contingent payments adjustments) under the Investment Agreementany Cash Management Arrangements);
(ok) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 recomputed as of the last day of the most recently ended fiscal quarter 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), (iiiii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers Borrower Representative has occurred and is continuing, and (iviii) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption maturity or similar requirement amortization rate greater than 1.0% per annum prior to the date that is six months 91 days after the Termination DateDate (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(k)); it being understood that, in the event that any such Indebtedness incurred under this Subsection 8.13(k) 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(k);
(pl) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(qm) Indebtedness (A) arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days in the ordinary course of its incurrencebusiness; or (B) consisting of guarantees, indemnities, obligations in respect of earnouts or other purchase price adjustments, or similar obligations, created, incurred or assumed in connection with the acquisition or disposition of any business, assets or Person;
(rn) 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”;
(so) 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 that were issued in connection with the financing or refinancing of such property or assets, provided, that, that the aggregate principal amount of such Indebtedness outstanding at any time shall not exceed $25,000,00030,000,000;
(tp) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(uq) 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;
(vr) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements, Hedging Agreements and under other Permitted Hedging Arrangements;
(ws) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(xt) 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 such participations; and;
(yu) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when Subsidiaries; provided that the aggregate amount outstanding at any time of such Indebtedness incurred or assumedassumed pursuant to this clause (u), when aggregated with all other Indebtedness incurred or assumed and outstanding pursuant to this clause (u) and all Guarantee Obligations incurred and outstanding pursuant to Subsection 8.13(e)(iv), shall not exceed the greater of (i) $50,000,000 100,000,000 and (ii) the amount equal to 460% of Four Quarter EBITDA at the Consolidated Total Assets time of incurrence of such Indebtedness; and
(v) Indebtedness in aggregate 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, including those issued to government entities in connection with self-insurance under applicable workers’ compensation statutes. For purposes of determining compliance with and the outstanding principal amount at of any time outstanding; provided that particular Indebtedness (including Guarantee Obligations) incurred pursuant to subclause and in compliance with, this Subsection 8.13, (iii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; andthe event that an
Appears in 1 contract
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Obligations (excluding Bank Product Debt Documents in an aggregate principal amount not permitted pursuant to exceed $410,000,000Section 10.1(b));
(b) Indebtedness incurred in connection with Bank Products and other Hedging Agreements with a counterparty (other than a Lender or an Affiliate of a Lender) and upon terms and conditions (including interest rate) reasonably satisfactory to the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness of the Company and its Restricted Subsidiaries incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed $70,000,000105,000,000 on any date of determination;
(d) Indebtedness (other than Guaranty Obligations with respect to Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)under this Section 10.1;
(e) Indebtedness of owed by (i) any Domestic Credit Party to any other Domestic Credit Party or any Domestic Subsidiary that is a Restricted Subsidiary so long as such Domestic Subsidiary becomes a Domestic Credit Party within the Parent Borrower time period specified by Section 8.11(a), (ii) any Foreign Obligor to any other Foreign Obligor, (iii) any Restricted Subsidiary that is not a Credit Party to any other Restricted Subsidiary that is not a Credit Party, (iv) any Restricted Subsidiary that is not a Guarantor to any Credit Party in an aggregate amount not to exceed $40,000,00060,000,000 at any time outstanding, (v) any Domestic Credit Party to any Restricted Subsidiary that is not a Guarantor or an Unrestricted Subsidiary in an aggregate amount not to exceed $40,000,00060,000,000 at any time outstanding or (vi) any Restricted Subsidiary to the Parent Borrower Company or any other Restricted Subsidiary, pursuant to an Investment permitted by Section 10.3(h)(iii) (collectively, the “Intercompany Debt”);
(f) Guaranty Obligations incurred by:
(i) unsecured Indebtedness and Subordinated Indebtedness and the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunderrefinancing, refunding, renewal and extension thereof; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect each issuance of such Indebtedness at the time of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l)issuance, (m), i) no Default or (w) Event of Default shall have occurred and be continuing or would be caused by the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount issuance of such Indebtedness, together (ii) the Administrative Agent shall have received reasonably satisfactory written evidence that the Company would be in compliance with Sections 9.1 and 9.2 on a pro forma basis after giving effect to the issuance of any such Indebtedness, and (iii) (x) the maturity date of such Indebtedness shall be no earlier than the date which is six months following the Maturity Date and such Indebtedness shall not be subject to amortization or prepayment prior to such date (other than any such amortization or prepayments permitted to be paid under the applicable intercreditor or subordination agreement with respect to such Indebtedness as to which the Administrative Agent is a party) and (y) the financial covenants and events of default to which such Indebtedness is subject are not more restrictive, when taken as a whole, than the financial covenants and the Events of Default under this Agreement, as determined in good faith by the Company and the Administrative Agent (provided, that, if the Administrative Agent fails to object to such determination of the Company within three (3) Business Days after receipt of written notification thereof, the Administrative Agent will be deemed to have agreed with the aggregate amount of Investments permitted pursuant Company’s determination), unless the Company agrees to amend this Agreement such that the conditions in this clause (qiii) would be satisfied upon the execution of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extentsuch amendment;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower Company or a any Restricted Subsidiary thereof arising from agreements providing for indemnification, adjustment of the Parent Borrower to finance the acquisition, leasing, construction purchase price or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together similar obligations incurred or assumed in connection with any renewal, extension, refinancing or refunding Permitted Acquisition to the extent permitted pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assetsSection 10.3(g);
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower Company that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount 50,000,00075,000,000 at any time outstanding; provided that such Indebtedness incurred shall at all times be and remain non-recourse to any Credit Party and, at the time of such issuance, no Default or Event of Default exists;
(i) [Intentionally Omitted];
(j) other Indebtedness, in an aggregate amount not to exceed $25,000,00037,500,000 at any time outstanding for this clause (j);
(k) Indebtedness existing on the ClosingThird Amendment Effective Date and listed on Schedule 10.1 and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(l) other Indebtedness in an aggregate principal amount not to exceed $5,000,0007,500,000 at any time outstanding for letters of credit not issued by the Issuing Lenders hereunder;
(m) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancing thereof to the extent not provided to secure the repayment of other Indebtedness;
(n) Indebtedness related to customer financings; provided that the aggregate principal amount of all such Indebtedness and all Investments made pursuant to subclause Section 10.3(j) shall not exceed $25,000,00037,500,000 at any time outstanding; and
(o) Indebtedness (i) of a Person that becomes a Restricted Subsidiary of the Company after the ClosingThird Amendment Effective Date in connection with any Permitted Acquisition or (ii) shall assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Restricted Subsidiary or such assets are acquired and is not cease to be permitted under this clause created in contemplation of, or in connection with, such Person becoming a Restricted Subsidiary or such assets being acquired and (y) solely because shall not exceed $25,000,00037,500,000 in the aggregate on any date of a later decrease in Consolidated Total Assetsdetermination.; and
Appears in 1 contract
Sources: Credit Agreement (Blackbaud Inc)
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not Obligations (excluding Hedging Obligations permitted pursuant to exceed $410,000,000Section 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 or an Affiliate of a Lender shall be deemed satisfactory to the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness existing on the Closing Date and not otherwise permitted under this Section, as set forth on Schedule 6.1(t), and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(d) Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing of the US Borrower and its Subsidiaries incurred in connection with Capital Leases in an aggregate amount not to exceed $5,000,000 on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)date of determination;
(e) purchase money Indebtedness of the Parent US Borrower or and its Subsidiaries in an aggregate amount not to exceed $5,000,000 on any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiarydate of determination;
(f) Guaranty Obligations incurred by:in favor of the Administrative Agent for the benefit of the Administrative Agent and the Lenders;
(ig) the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunder; provided that Guaranty Obligations in with respect of to Indebtedness permitted pursuant to clauses subsections (a)) through (e) of this Section;
(h) Indebtedness owed (i) by the US Borrower to any Subsidiary Guarantor, (cii) and (o) shall be permitted only by any Subsidiary Guarantor to the extent that such Guaranty Obligations are incurred by Guarantors US Borrower, (other than, in the case of clause (o), Guaranty Obligations incurred iii) by any Foreign Subsidiary Guarantor to any other Subsidiary Guarantor, or (iv) by any Subsidiary that is not a Subsidiary Guarantor to any other 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 Foreign Subsidiary to the 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 10.3(i) and 10.5(f), does not exceed $60,000,000 in the aggregate during the term of this Agreement; 2270524.10 LIB: CHARLOTTE
(j) 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 Loan Party (other than Holdings) in respect pro forma basis after giving effect to the issuance of Indebtedness of a Non-Loan Partyany such Subordinated Indebtedness;
(iiik) a Non-Loan Party in respect of additional Indebtedness of another Non-Loan Party that is the US Borrower and the Subsidiary Guarantors not otherwise permitted hereunderpursuant to this Section in an aggregate amount outstanding not to exceed $5,000,000;
(ivl) the Parent Borrower so long as no Default or any Event of its Restricted Subsidiaries Default has occurred and is continuing or would occur as a result therefrom, Indebtedness arising in respect of Indebtedness of any Person (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any timeconnection with an Accounts Securitization;
(vm) in connection with sales endorsements of negotiable instruments for deposit 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries collection in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) unsecured Indebtedness in respect of any letters of credit issued performance bonds, worker’s compensation claims, surety or appeal bonds and payment obligations in favor of any Issuing Lender connection with self insurance or the Swingline Lender to support any Defaulting Lender’s participation in Letters of Credit or Swingline Loans as provided for in Subsection 3.4similar obligations, in each case to the extent not exceeding incurred in the maximum amount ordinary course of such participationsbusiness; and
(yo) other Indebtedness consisting of all obligations, contingent or otherwise, of the Parent US Borrower or any of its Restricted Subsidiaries not exceeding relative to the face amount of the Independent Letters of Credit, whether drawn or undrawn, including, without limitation, any reimbursement obligations in connection with the Independent Letters of Credit. provided, that no agreement or instrument with respect to Indebtedness permitted to be incurred by this Section shall restrict, limit or otherwise encumber (when incurred by covenant or assumedotherwise) the greater ability of any Subsidiary of any Borrower to make any payment to such Borrower or any of its Subsidiaries (iin the form of dividends, intercompany advances or otherwise) $50,000,000 and (ii) for the amount equal purpose of enabling such Borrower to 4% of pay the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total AssetsObligations.; and
Appears in 1 contract
Sources: Credit Agreement (SCP Pool Corp)
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Obligations (excluding Bank Product Debt Documents in an aggregate principal amount not permitted pursuant to exceed $410,000,000Section 10.1(b));
(b) Indebtedness incurred in connection with Bank Products and other Hedging Agreements with a counterparty (other than a Lender or an Affiliate of a Lender) and upon terms and conditions (including interest rate) reasonably satisfactory to the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to this Agreement and the other Loan Documents (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)Administrative Agent;
(c) Permitted AdditionalSecured Ratio IndebtednessIndebtedness of the Company and its Restricted Subsidiaries incurred in connection with Capital Leases and purchase money Indebtedness in an aggregate amount not to exceed $50,000,000 on any date of determination;
(d) Indebtedness (other than Guaranty Obligations with respect to Indebtedness permitted by clauses (a) through (c) above) existing on the Closing Date, and disclosed on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)under this Section 10.1;
(e) Indebtedness of owed by (i) any Domestic Credit Party to any other Domestic Credit Party or any Domestic Subsidiary that is a Restricted Subsidiary so long as such Domestic Subsidiary becomes a Domestic Credit Party within the Parent Borrower time period specified by Section 8.11(a), (ii) any Foreign Obligor to any other Foreign Obligor, (iii) any Restricted Subsidiary that is not a Credit Party to any other Restricted Subsidiary that is not a Credit Party, (iv) any Restricted Subsidiary that is not a Guarantor to any Credit Party in an aggregate amount not to exceed $40,000,000 at any time outstanding, (v) any Domestic Credit Party to any Restricted Subsidiary that is not a Guarantor or an Unrestricted Subsidiary in an aggregate amount not to exceed $40,000,000 at any time outstanding or (vi) any Restricted Subsidiary to the Parent Borrower Company or any other Restricted Subsidiary, pursuant to an Investment permitted by Section 10.3(h)(iii) (collectively, the “Intercompany Debt”);
(f) Guaranty Obligations incurred by:
(i) unsecured Indebtedness and Subordinated Indebtedness and the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunderrefinancing, refunding, renewal and extension thereof; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause (o), Guaranty Obligations incurred by any Foreign Subsidiary that is not a Guarantor);
(ii) a Loan Party (other than Holdings) in respect each issuance of such Indebtedness at the time of a Non-Loan Party;
(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 (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l)issuance, (m), i) no Default or (w) Event of Default shall have occurred and be continuing or would be caused by the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount issuance of such Indebtedness, together (ii) the Administrative Agent shall have received reasonably satisfactory written evidence that the Company would be in compliance with Sections 9.1 and 9.2 on a pro forma basis after giving effect to the issuance of any such Indebtedness, and (iii) (x) the maturity date of such Indebtedness shall be no earlier than the date which is six months following the Maturity Date and such Indebtedness shall not be subject to amortization or prepayment prior to such date (other than any such amortization or prepayments permitted to be paid under the applicable intercreditor or subordination agreement with respect to such Indebtedness as to which the Administrative Agent is a party) and (y) the financial covenants and events of default to which such Indebtedness is subject are not more restrictive, when taken as a whole, than the financial covenants and the Events of Default under this Agreement, as determined in good faith by the Company and the Administrative Agent (provided, that, if the Administrative Agent fails to object to such determination of the Company within three (3) Business Days after receipt of written notification thereof, the Administrative Agent will be deemed to have agreed with the aggregate amount of Investments permitted pursuant Company’s determination), unless the Company agrees to amend this Agreement such that the conditions in this clause (qiii) would be satisfied upon the execution of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extentsuch amendment;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower Company or a any Restricted Subsidiary thereof arising from agreements providing for indemnification, adjustment of the Parent Borrower to finance the acquisition, leasing, construction purchase price or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together similar obligations incurred or assumed in connection with any renewal, extension, refinancing or refunding Permitted Acquisition to the extent permitted pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assetsSection 10.3(g);
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower Company that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) 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 such participations; and
(y) other Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 and (ii) the amount equal to 4% of the Consolidated Total Assets in aggregate principal amount at any time outstanding; provided that such Indebtedness incurred shall at all times be and remain non-recourse to any Credit Party and, at the time of such issuance, no Default or Event of Default exists;
(i) [Intentionally Omitted];
(j) other Indebtedness, in an aggregate amount not to exceed $25,000,000 at any time outstanding for this clause (j);
(k) Indebtedness existing on the Closing Date and listed on Schedule 10.1 and the renewal, refinancing, extension and replacement (but not the increase in the aggregate principal amount) thereof;
(l) other Indebtedness in an aggregate principal amount not to exceed $5,000,000 at any time outstanding for letters of credit not issued by the Issuing Lenders hereunder;
(m) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, bankers acceptances, letters of credit, surety bonds or other similar obligations arising in the ordinary course of business, and any refinancing thereof to the extent not provided to secure the repayment of other Indebtedness;
(n) Indebtedness related to customer financings; provided that the aggregate principal amount of all such Indebtedness and all Investments made pursuant to subclause Section 10.3(j) shall not exceed $25,000,000 at any time outstanding; and
(o) Indebtedness (i) of a Person that becomes a Restricted Subsidiary of the Company after the Closing Date in connection with any Permitted Acquisition or (ii) shall assumed in connection with any assets acquired in connection with any Permitted Acquisition, and the refinancing, refunding, renewal and extension thereof; provided, that such Indebtedness (x) exists at the time such Person becomes a Restricted Subsidiary or such assets are acquired and is not cease to be permitted under this clause created in contemplation of, or in connection with, such Person becoming a Restricted Subsidiary or such assets being acquired and (y) solely because shall not exceed $20,000,000 in the aggregate on any date of a later decrease in Consolidated Total Assetsdetermination.; and
Appears in 1 contract
Sources: Credit Agreement (Blackbaud Inc)
Limitations on Indebtedness. Directly or indirectly createCreate, incur, assume or otherwise become or remain directly or indirectly liable with respect suffer to exist any Indebtedness except for the following (collectively, “Permitted Indebtedness”):except:
(a) Indebtedness evidenced by the Senior Secured Notes Debt Documents in an aggregate principal amount not Obligations (including Hedging Obligations to exceed $410,000,000the extent permitted pursuant to Section 10.3(d));
(b) Indebtedness of existing on the Parent Borrower or any of its Restricted Subsidiaries incurred pursuant to Closing Date and not otherwise permitted under this Agreement Section 10.1, as set forth on Schedule 6.1(t), and the other Loan Documents renewal, refinancing, extension and replacement (including, without limitation, any Accordion Facility, Extension or any Credit Agreement Refinancing Indebtedness)but not the increase in the aggregate principal amount) thereof;
(c) Indebtedness of the Credit Parties and their Subsidiaries incurred in connection with Capital Leases, including those Capital Leases existing on the Closing Date and including Capital Leases incurred in connection with a Permitted AdditionalSecured Ratio IndebtednessAcquisition (so long as such Capital Lease was not incurred in contemplation of such acquisition), in an aggregate amount not to exceed $5,000,000 on any date of determination;
(d) purchase money Indebtedness, including all purchase money Indebtedness (other than Indebtedness permitted by clauses (a) through (c) above) existing on the Closing DateDate and including purchase money Indebtedness incurred in connection with a Permitted Acquisition (so long as such purchase money Indebtedness was not incurred in contemplation of such acquisition), of the Credit Parties and disclosed their Subsidiaries in an aggregate amount not to exceed $2,500,000 on Schedule 8.13(d) (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below)date of determination;
(e) Indebtedness Guaranty Obligations in favor of the Parent Borrower or any Restricted Subsidiary to Administrative Agent for the Parent Borrower or any other Restricted Subsidiarybenefit of the Administrative Agent and the Lenders;
(f) Guaranty Obligations with respect to Indebtedness permitted pursuant to subsections (a) through (d) and (k) through (n) of this Section;
(g) Indebtedness owed by any Subsidiary Guarantor to a Borrower, by a Borrower to any Subsidiary Guarantor and by any Subsidiary Guarantor to any other Subsidiary Guarantor;
(h) Indebtedness owed by any Foreign Subsidiary (i) to any other Foreign Subsidiary and (ii) to a Credit Party or any Domestic Subsidiary thereof; provided, that the aggregate amount of all intercompany Indebtedness incurred by:by Foreign Subsidiaries pursuant to Section 10.1(h)(ii), plus the aggregate amount of all investments in Foreign Subsidiaries made pursuant to Section 10.3(a)(iii) shall not at any time exceed an aggregate amount of $5,000,000;
(i) Subordinated Indebtedness incurred on terms and conditions reasonably satisfactory to the Parent Borrower or any of its Restricted Subsidiaries in respect of Indebtedness of a Loan Party that is permitted hereunderAdministrative Agent; provided that Guaranty Obligations in respect of Indebtedness permitted pursuant to clauses (a), (c) and (o) shall be permitted only to the extent that such Guaranty Obligations are incurred by Guarantors (other than, in the case of clause each incurrence of Subordinated Indebtedness, (o), Guaranty Obligations incurred 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 Foreign Subsidiary that is not a Guarantor)such Subordinated Indebtedness;
(iij) a Loan Party (other than Holdings) in respect endorsements of Indebtedness of a Non-Loan Party;
(iii) a Non-Loan Party in respect of Indebtedness of another Non-Loan Party that is permitted hereunder;
(iv) the Parent Borrower negotiable instruments for deposit or any of its Restricted Subsidiaries in respect of Indebtedness of any Person (other than a the Parent Borrower or any of its Restricted Subsidiaries) up to a maximum aggregate outstanding principal amount not exceeding $10,000,000 at any time;
(v) 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) consisting of accommodation guarantees for the benefit of trade creditors of the Parent Borrower or any of its Restricted Subsidiaries collection in the ordinary course of business;
(vii) in respect of Investments expressly permitted pursuant to clauses (l), (m), or (w) of the definition of “Permitted Investments”;
(viii) in respect of third-party loans and advances to officers or employees of any Parent Entity, Holdings, the Parent Borrower or any of its Restricted Subsidiaries permitted pursuant to clauses (l) or (m) of the definition of “Permitted Investments”; and
(ix) in respect of Indebtedness or other obligations of a Person (other than Holdings, the Parent Borrower or any of its Restricted Subsidiaries) in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or any of its Restricted Subsidiaries, and the aggregate outstanding amount of such Indebtedness, together with the aggregate amount of Investments permitted pursuant to clause (q) of the definition of “Permitted Investments” the Dollar Equivalent of which does not exceed $25,000,000; provided, however, that if any Indebtedness referred to in clauses (i) through (iv) above is subordinated in right of payment to the Obligations or is secured by Liens that are senior or subordinate to any Liens securing the Collateral, then any corresponding Guaranty Obligations shall be subordinated and the Liens securing the corresponding Guaranty Obligations shall be senior or subordinate to substantially the same extent;
(g) Financing Lease Obligations and Indebtedness incurred by the Parent Borrower or a Restricted Subsidiary of the Parent Borrower to finance the acquisition, leasing, construction or improvement of fixed assets; provided, however, that (i) the aggregate outstanding principal amount of all such Financing Lease Obligations and Indebtedness (together with any renewal, extension, refinancing or refunding pursuant to clause (i) below) shall not exceed $30,000,000 at any time and (ii) such Financing Lease Obligations and Indebtedness shall be incurred prior to or within 180 days of such acquisition or leasing or completion of construction or improvement of such assets;
(h) Indebtedness of Foreign Subsidiaries of the Parent Borrower that are Restricted Subsidiaries in support of working capital needs up to an aggregate outstanding principal amount, which shall not exceed the greater of (i) $30,000,000 and (ii) an amount equal to 3.0% of Consolidated Total Assets at any time (provided that an additional $10,000,000 of such Indebtedness shall be permitted to be outstanding at any time in connection with overdraft and similar facilities);
(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 and expenses) and (B) such Indebtedness has a weighted average maturity no shorter than the weighted average maturity of the Indebtedness so renewed, extended, refinanced or refunded; and
(ii) clause (a), (c) or (o) hereof or this clause (i)(ii); 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 and expenses), (B) no Loan Party that is not obligated with respect to repayment of such Indebtedness that is renewed, extended, refinanced or refunded immediately prior to the time of such renewal, extension, refinancing or refunding is required to become obligated with respect thereto (other than any Person that becomes a Loan Party and is created or acquired on or after the date of such renewal, extension, refinancing or refunding) (C) if the Indebtedness that is renewed, extended, refinanced or refunded was subordinated in right of payment to the Obligations, then the terms and conditions of the renewal, extension, refinancing, refunding must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the renewed, extended, refinanced or refunded Indebtedness and (D) such Indebtedness has (x) a stated maturity date that is (i) at least 91 days after the Termination Date and (ii) not earlier than the stated maturity date of the Indebtedness that is renewed, extended, refinanced or refunded and (y) a weighted average life, at the time of issuance or incurrence, of not less than the remaining weighted average life of the Indebtedness that is renewed, extended, refinanced or refunded;
(j) Indebtedness of the Parent Borrower or any Restricted Subsidiary to Holdings, the Parent Borrower or any of its Subsidiaries to the extent the Investment in such Indebtedness is not restricted by Subsection 8.12;
(k) [Intentionally omitted];
(l) 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;
(m) [Intentionally omitted];
(n) Indebtedness constituting indemnities and adjustments (including pension plan adjustments and contingent payments adjustments) under the Investment Agreement);
(o) Indebtedness incurred or assumed in connection with, or as a result of, a Permitted Acquisition so long as: (i) with respect to any newly incurred Indebtedness, such Indebtedness is unsecuredsecured only by property of the acquired company or other assets to the extent otherwise permitted hereunder, (ii) the Parent Borrower would be in compliance, on a Pro Forma Basis after giving effect to the consummation of such acquisition and the incurrence or assumption of such Indebtedness, with Subsection 8.1 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 shall deliver to the Administrative Agent a certificate of a Responsible Officer setting forth in reasonable detail the calculations demonstrating such compliance), (iii) before and after giving effect thereto, no Specified Default or any other Event of Default known to the Borrowers has occurred and is continuing, and (iv) with respect to any newly incurred Indebtedness, such Indebtedness does not have any maturity, amortization, redemption or similar requirement prior to the date that is six months after the Termination Date;
(p) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries incurred to finance insurance premiums in the ordinary course of business;
(q) Indebtedness arising from the honoring of a check, draft or similar instrument against insufficient funds and which is extinguished within five Business Days of its incurrence;
(r) 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”;
(s) 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 that were issued in connection with the 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;
(t) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of obligations evidenced by bonds, debentures, notes or similar instruments issued as payment-in-kind interest payments in respect of Indebtedness otherwise permitted hereunder;
(u) 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;
(v) Indebtedness of the Parent Borrower and its Restricted Subsidiaries under Interest Rate Protection Agreements and under Permitted Hedging Arrangements;
(w) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries in respect of any Sale and Leaseback Transaction;
(x) unsecured Indebtedness in respect of any letters of credit issued performance bonds, worker’s compensation claims, surety or appeal bonds and payment obligations in favor of any Issuing Lender connection with self insurance or the Swingline Lender to support any Defaulting Lender’s participation in Letters of Credit or Swingline Loans as provided for in Subsection 3.4similar obligations, in each case to the extent not exceeding incurred in the maximum amount ordinary course of such participationsbusiness; and
(yl) Indebtedness in the form of earn-outs and other contingent payments in respect of Permitted Acquisitions (both before and after any liability associated therewith becomes fixed);
(m) Indebtedness of the Parent Borrower or any of its Restricted Subsidiaries not exceeding (when incurred or assumed) the greater of (i) $50,000,000 incurred in respect of customary netting services, overdraft protections and otherwise in connection with deposit accounts, in each case, incurred in the ordinary course of business and (ii) incurred in connection with Hedging Agreements permitted pursuant to Section 10.3(d) to the amount equal to 4% extent not already permitted under any other clause of this Section 10.1; and
(n) unsecured Indebtedness in the Consolidated Total Assets in aggregate principal amount not to exceed $5,000,000 at any one time outstanding; provided that Indebtedness incurred pursuant to subclause (ii) shall not cease to be permitted under this clause (y) solely because of a later decrease in Consolidated Total Assets.; and
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Sources: Credit Agreement (PRA International)