Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except: (a) Indebtedness created under the Loan Documents; (b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger; (c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(C) hereto and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (x) the maturity date of the Indebtedness refinanced and (y) the date six months following the Revolving Maturity Date; (d) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any other Loan Party shall be subject to SECTION 6.06 below; (e) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other Guarantor, to the extent said Indebtedness is permitted hereunder; (f) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") of motor vehicles (including off-road vehicles) and aircraft; (A) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof, (B) Attributable Debt (as defined below) of the Borrower or any Subsidiary incurred after the date hereof pursuant to Sale and Leaseback Transactions permitted by SECTION 6.04 and (C) Indebtedness represented by seller notes executed by the Borrower incurred after the date hereof in connection with Permitted Acquisitions; provided that (i) the Indebtedness in clause (A) hereof is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisition, construction or improvement) after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of the Indebtedness permitted by this clause (g) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" means, with respect to any Sale and Leaseback transaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction were capital lease obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Service Corporation International)
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the MergerIntentionally Deleted;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(c) hereto and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (x) the maturity date of the Indebtedness refinanced and (y) the date six months following the Revolving Maturity Date;
(d) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party Guarantor to the Borrower or any other Loan Party shall be subject to SECTION Section 6.06 below;
(e) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other Guarantor, to the extent said Indebtedness is permitted hereunder; provided that such Guarantees of Indebtedness of any Subsidiary that is not a Guarantor shall be subject to Section 6.06 below;
(f) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under purchase money financings meeting the requirements of Section 6.01(g) other than proviso (ii) therein and leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") “Transportation Equipment Transactions”), in each case of motor vehicles (including off-road vehicles) and aircraft;
(A) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof, (B) Attributable Debt (as defined below) of the Borrower or any Subsidiary incurred after the date hereof pursuant to Sale and Leaseback Transactions permitted by SECTION 6.04 and (C) Indebtedness represented by seller notes executed by the Borrower incurred after the date hereof in connection with Permitted Acquisitions; provided that (i) the Indebtedness in clause (A) hereof is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisition, construction or improvement) after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of the Indebtedness permitted by this clause (g) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" means, with respect to any Sale and Leaseback transaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction were capital lease obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;increase
Appears in 1 contract
Sources: Revolving Credit Agreement (Service Corporation International)
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(b) hereto hereto, (ii) Indebtedness incurred after the Effective Date under the Borrower’s $550,000,000 4.625% Senior Notes due 2027, as previously disclosed to the Lenders, and (iii) extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount (except by an amount equal to the accrued and unpaid interest thereon, any premium paid and fees and expenses incurred in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder) or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (xA) the maturity date of the Indebtedness refinanced and (yB) the date six months following the Revolving Maturity Date; and provided further that to the extent such Indebtedness is unsecured, it shall remain unsecured;
(dc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party Non-Guarantor to the Borrower or any other Loan Party shall be subject to SECTION Section 6.06 below;
(ed) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other GuarantorSubsidiary, to the extent said Indebtedness is permitted hereunder; provided that such Guarantees of Indebtedness of any Non-Guarantor shall be subject to Section 6.06 below;
(fe) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under purchase money financings meeting the requirements of Section 6.01(f) other than proviso (B) therein and leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") “Transportation Equipment Transactions”), in each case of motor vehicles (including off-road vehicles) and aircraft;
(Ai) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof, (Bii) Attributable Debt (as defined below) of the Borrower or any Subsidiary incurred after the date hereof Effective Date pursuant to Sale and Leaseback Transactions permitted by SECTION Section 6.04 and (Ciii) Indebtedness represented by seller notes executed by the Borrower or any Subsidiary incurred after the date hereof Effective Date in connection with Permitted Acquisitions; provided that (iA) the Indebtedness in clause (Ai) hereof is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisition, construction or improvement) after such acquisition or the completion of such construction or improvement and (iiB) the aggregate principal amount of the Indebtedness permitted by this clause (gf) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" “Attributable Debt” means, with respect to any Sale and Leaseback transactionTransaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction Transaction were capital lease obligationsCapital Lease Obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale Sale and leaseback transaction Leaseback Transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction Transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;
Appears in 1 contract
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(b) hereto and amendments, extensions, renewals renewals, refinancing, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (x) the maturity date of the Indebtedness refinanced and (y) the date six months following the Revolving Maturity Date;
(dc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party to provided, in the Borrower or any other Loan Party shall be subject to SECTION 6.06 below;
(e) Unsecured Guarantees by the Borrower case of Indebtedness of any Foreign Subsidiary and Guarantees by to any Guarantor Loan Party, that no Default exists at the time, or is created as a result of, the incurrence of Indebtedness of any other Guarantor, to the extent said Indebtedness is permitted hereundersuch Indebtedness;
(fd) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") of motor vehicles (including off-road vehicles) and aircraft;
(A) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assetsassets by a Loan Party, including excluding Capital Lease Obligations Obligations, and any Indebtedness assumed in connection with the acquisition of any such assets, assets by a Loan Party or secured by a Lien on any such assets asset prior to the acquisition thereof, and amendments, extensions, renewals renewals, refinancings, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) no Default exists at the time, or change is created as a result of, the parties directly incurrence of such Indebtedness, (ii) at the time of such incurrence, the Pro Forma Financial Tests are satisfied and (iii) at the time of such incurrence, such Indebtedness, together with Indebtedness permitted under Section 6.01(e), does not exceed the greater of (x) ten percent (10%) of Tangible Assets of the Borrower and the Subsidiaries on a consolidated basis and (y) $50,000,000;
(e) Indebtedness of any Subsidiary in existence (but not incurred or indirectly responsible for created in connection with an acquisition) on the payment date on which such Subsidiary is acquired by the Borrower or a Subsidiary pursuant to a Permitted Acquisition, and amendments, extensions, renewals, refinancings, refundings and replacements of such Indebtedness that do not increase the outstanding principal amount thereof, provided that (Bi) Attributable Debt neither the Borrower nor any of the Subsidiaries existing before giving effect to such acquisition has any obligation with respect to such Indebtedness, (ii) none of the properties of the Borrower or any of the Subsidiaries existing before giving effect to such acquisition is bound with respect to such Indebtedness and (iii) at the time of such incurrence, such Indebtedness, together with Indebtedness permitted under Section 6.01(d), does not exceed the greater of (x) ten percent (10%) of Tangible Assets of the Borrower and the Subsidiaries on a consolidated basis and (y) $50,000,000;
(f) Capital Lease Obligations; provided that (i) no Default exists at the time, or is created as defined belowa result of, the incurrence of such Indebtedness and (ii) at the time of such incurrence, the Pro Forma Financial Tests are satisfied;
(g) Indebtedness of the Borrower or any Subsidiary in respect of the financing of insurance premiums with providers of such insurance or their Affiliates in the ordinary course -50- HOU:3135549.8 of business;
(h) Indebtedness arising from or representing deferred compensation to employees, directors and consultants of the Borrower or any Subsidiary incurred after in the date hereof pursuant to Sale and Leaseback Transactions ordinary course of business; and
(i) Unsecured Indebtedness of any Loan Party or First-Tier Foreign Subsidiary not permitted by SECTION 6.04 and (C) Indebtedness represented by seller notes executed by the Borrower incurred after the date hereof in connection with Permitted Acquisitionsany other clause of this Section 6.01; provided that (i) no Default exists at the Indebtedness in clause (A) hereof time, or is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisitioncreated as a result of, construction or improvement) after such acquisition or the completion incurrence of such construction or improvement Indebtedness and (ii) at the aggregate principal amount time of the Indebtedness permitted by this clause (g) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" means, with respect to any Sale and Leaseback transactionsuch incurrence, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction were capital lease obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;Pro Forma Financial Tests are satisfied.
Appears in 1 contract
Sources: Revolving Credit Agreement (Rackspace Hosting, Inc.)
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan DocumentsObligations;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(b) hereto to the Disclosure Letter and amendments, extensions, renewals renewals, refinancing, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (x) the maturity date of the Indebtedness refinanced and (y) the date six months following the Revolving Maturity Date;
(dc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that provided, in the case of Indebtedness of any Subsidiary that is not a Guarantor to any Loan Party to Party, that (i) no Default exists at the Borrower time of, or any other Loan Party shall be subject to SECTION 6.06 belowis created as a result of, the incurrence of such Indebtedness and (ii) at the time of such incurrence, the Pro Forma Financial Tests are satisfied;
(ed) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other GuarantorPurchase Money Indebtedness, to the extent said Indebtedness is permitted hereunder;
(f) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under leases (collectivelyCapitalized Lease Obligations, "TRANSPORTATION EQUIPMENT LEASES") of motor vehicles (including off-road vehicles) and aircraft;
(A) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Finance Lease Obligations and any Indebtedness mortgage financings assumed or incurred in connection with the acquisition of any such assets, assets by the Borrower or any Subsidiary or secured by a Lien on any such assets asset prior to the acquisition thereof, and amendments, extensions, renewals renewals, refinancings, refundings and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) no Default exists at the time of, or change is created as a result of, the parties directly incurrence of such Indebtedness and (ii) at the time of such incurrence, the Pro Forma Financial Tests are satisfied;
(e) Acquired Indebtedness of any Subsidiary in existence (but not incurred or indirectly responsible for created in connection with or in contemplation of an acquisition) on the payment date on which such Subsidiary is acquired by the Borrower or any Subsidiary pursuant to a Permitted Acquisition and amendments, extensions, renewals, refinancings, refundings and replacements of such Indebtedness that do not increase the outstanding principal amount thereof, provided that (Bi) Attributable Debt neither the Borrower nor any of the Subsidiaries existing before giving effect to such acquisition has any obligation with respect to such Indebtedness, (as defined belowii) none of the properties of the Borrower or any of the Subsidiaries existing before giving effect to such acquisition is bound with respect to such Indebtedness and (iii) at the time of such incurrence, the Pro Forma Financial Tests are satisfied;
(f) Indebtedness of the Borrower or any Subsidiary in respect of the financing of insurance premiums with providers of such insurance or their Affiliates in the ordinary course of business;
(g) Indebtedness arising from or representing deferred compensation to employees, directors and consultants of the Borrower or any Subsidiary incurred after in the date hereof pursuant ordinary course of business;
(h) unsecured Indebtedness of Subsidiaries that are not Guarantors in an aggregate principal amount not to exceed $100,000,000 at any time outstanding;
(i) Indebtedness of Foreign Subsidiaries in an aggregate principal amount not to exceed $300,000,000 at any time outstanding;
(j) Indebtedness in respect of Sale and Leaseback Transactions in an aggregate amount not to exceed $150,000,000 at any time outstanding;
(k) Indebtedness of the Borrower and its Subsidiaries in an aggregate amount at any time outstanding not to exceed, at the time such Indebtedness is incurred, assumed or created, the sum of $250,000,000 and five percent (5%) of Total Assets; provided that the aggregate principal amount of Indebtedness incurred pursuant to this clause (k) by Subsidiaries that are not Guarantors shall not exceed $175,000,000 at any time outstanding;
(l) Indebtedness in respect of the Senior Notes in an aggregate principal amount at any time outstanding not to exceed $500,000,000 and Guarantees in respect thereof;
(m) Indebtedness in respect of Swap Agreements permitted by SECTION 6.04 and Section 6.06;
(Cn) Indebtedness represented arising from the honoring by seller notes executed a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within five Business Days of incurrence;
(o) Indebtedness of the Borrower or any of its Subsidiaries in respect of performance bonds, bankers’ acceptances, workers’ compensation claims, surety, bid, appeal or similar bonds, completion guarantees, payment obligations in connection with self-insurance or similar obligations, and bank overdrafts (and letters of credit in respect thereof) in the ordinary course of business;
(p) Indebtedness of the Borrower or any Subsidiary consisting of “earn-out” obligations, guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets (including Capital Stock) so long as no Default exists at the time of, or is created as a result of, the incurrence of such Indebtedness;
(q) Indebtedness incurred by the Borrower incurred after or any of its Subsidiaries in respect of letters of credit, bank guarantees or similar instruments issued or created in the date hereof ordinary course of business, including in connection respect of health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with Permitted Acquisitionsrespect to reimbursement-type obligations regarding workers’ compensation claims; provided that any reimbursement obligations in respect thereof are reimbursed within 60 days following the incurrence thereof so long as no Default exists at the time of, or is created as a result of, the incurrence of such Indebtedness;
(r) unsecured Indebtedness of any Loan Party not permitted by any other clause of this Section 6.01; provided that (i) no Default exists at the Indebtedness in clause (A) hereof time of, or is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisitioncreated as a result of, construction or improvement) after such acquisition or the completion incurrence of such construction or improvement Indebtedness and (ii) at the aggregate time of such incurrence, the Pro Forma Financial Tests are satisfied. For purposes of determining compliance with this Section 6.01, in the event that all or a portion of an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (r) above, the Borrower shall, in its sole discretion, classify (or later reclassify) such item of Indebtedness, in whole or in part, in any manner that complies with this covenant. Accrual of interest, whether payable in cash or in kind, accretion or amortization of original issue discount, imputed interest, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock in the form of additional shares of the same class of Disqualified Capital Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock, as applicable, for purposes of this Section 6.01. For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated by the Borrower based on the relevant currency exchange rate in effect on the date such Indebtedness permitted by this clause (g) was incurred; provided that if such Indebtedness is incurred to Refinance other Indebtedness denominated in excess a foreign currency, and such Refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of Attributable Debt such Refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such new Indebtedness does not exceed $75,000,000 at the principal amount of such Indebtedness being Refinanced. Notwithstanding any time outstanding. "ATTRIBUTABLE DEBT" meansother provision of this covenant, the maximum amount of Indebtedness that may be incurred pursuant to this Section 6.01 will not be deemed to be exceeded with respect to any Sale and Leaseback transaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction were capital lease obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent outstanding Indebtedness due solely to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination result of any rate implicit fluctuations in the terms exchange rates of the lease included in such Sale and Leaseback transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;currencies.
Appears in 1 contract
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(b) hereto and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount (except by an amount equal to the accrued and unpaid interest thereon, any premium paid and fees and expenses incurred in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder) or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (xA) the maturity date of the Indebtedness refinanced and (yB) the date six months following the Revolving Maturity Date;; and provided further that to the extent such Indebtedness is unsecured, it shall remain unsecured.
(dc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party Non-Guarantor to the Borrower or any other Loan Party shall be subject to SECTION Section 6.06 below;
(ed) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other GuarantorSubsidiary, to the extent said Indebtedness is permitted hereunder; provided that such Guarantees of Indebtedness of any Non-Guarantor shall be subject to Section 6.06 below;
(fe) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under purchase money financings meeting the requirements of Section 6.01(f) other than proviso (B) therein and leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") “Transportation Equipment Transactions”), in each case of motor vehicles (including off-road vehicles) and aircraft;
(Ai) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof, (Bii) Attributable Debt (as defined below) of the Borrower or any Subsidiary incurred after the date hereof Effective Date pursuant to Sale and Leaseback Transactions permitted by SECTION Section 6.04 and (Ciii) Indebtedness represented by seller notes executed by the Borrower or any Subsidiary incurred after the date hereof Effective Date in connection with Permitted Acquisitions; provided that (iA) the Indebtedness in clause (Ai) hereof is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisition, construction or improvement) after such acquisition or the completion of such construction or improvement and (iiB) the aggregate principal amount of the Indebtedness permitted by this clause (gf) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" “Attributable Debt” means, with respect to any Sale and Leaseback transactionTransaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction Transaction were capital lease obligationsCapital Lease Obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale Sale and leaseback transaction Leaseback Transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction Transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;
Appears in 1 contract
Sources: Credit Agreement (Service Corporation International)
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(b) hereto hereto, and (ii) extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount (except by an amount equal to the accrued and unpaid interest thereon, any premium paid and fees and expenses incurred in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder) or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (xA) the maturity date of the Indebtedness refinanced and (yB) the date six months following the Revolving Maturity Date; and provided further that to the extent such Indebtedness is unsecured, it shall remain unsecured;
(dc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party Non-Guarantor to the Borrower or any other Loan Party shall be subject to SECTION Section 6.06 below;
(ed) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other GuarantorSubsidiary, to the extent said Indebtedness is permitted hereunder; provided that such Guarantees of Indebtedness of any Non-Guarantor shall be subject to Section 6.06 below;
(fe) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under purchase money financings meeting the requirements of Section 6.01(f) other than proviso (B) therein and leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") “Transportation Equipment Transactions”), in each case of motor vehicles (including off-road vehicles) and aircraft;
(Ai) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof, (Bii) Attributable Debt (as defined below) of the Borrower or any Subsidiary incurred after the date hereof Effective Date pursuant to Sale and Leaseback Transactions permitted by SECTION Section 6.04 and (Ciii) Indebtedness represented by seller notes executed by the Borrower or any Subsidiary incurred after the date hereof Effective Date in connection with Permitted Acquisitions; provided that (iA) the Indebtedness in clause (Ai) hereof is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisition, construction or improvement) after such acquisition or the completion of such construction or improvement and (iiB) the aggregate principal amount of the Indebtedness permitted by this clause (gf) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" “Attributable Debt” means, with respect to any Sale and Leaseback transactionTransaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction Transaction were capital lease obligationsCapital Lease Obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale Sale and leaseback transaction Leaseback Transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction Transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;
Appears in 1 contract
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(b) hereto hereto, (ii) Indebtedness incurred under the Borrower’s $750,000,000 [5.125]% Senior Notes due 2029, as previously disclosed to the Lenders, and (iii) extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount (except by an amount equal to the accrued and unpaid interest thereon, any premium paid and fees and expenses incurred in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder) or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (xA) the maturity date of the Indebtedness refinanced and (yB) the date six months following the Revolving Maturity Date; and provided further that to the extent such Indebtedness is unsecured, it shall remain unsecured;
(dc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party Non-Guarantor to the Borrower or any other Loan Party shall be subject to SECTION Section 6.06 below;
(ed) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other GuarantorSubsidiary, to the extent said Indebtedness is permitted hereunder; provided that such Guarantees of Indebtedness of any Non-Guarantor shall be subject to Section 6.06 below;
(fe) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under purchase money financings meeting the requirements of Section 6.01(f) other than proviso (B) therein and leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") “Transportation Equipment Transactions”), in each case of motor vehicles (including off-road vehicles) and aircraft;
(Ai) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof, (Bii) Attributable Debt (as defined below) of the Borrower or any Subsidiary incurred after the date hereof Effective Date pursuant to Sale and Leaseback Transactions permitted by SECTION Section 6.04 and (Ciii) Indebtedness represented by seller notes executed by the Borrower or any Subsidiary incurred after the date hereof Effective Date in connection with Permitted Acquisitions; provided that (iA) the Indebtedness in clause (Ai) hereof is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisition, construction or improvement) after such acquisition or the completion of such construction or improvement and (iiB) the aggregate principal amount of the Indebtedness permitted by this clause (gf) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" “Attributable Debt” means, with respect to any Sale and Leaseback transactionTransaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction Transaction were capital lease obligationsCapital Lease Obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale Sale and leaseback transaction Leaseback Transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction Transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;
Appears in 1 contract
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(b) hereto and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (Ai) shall be unsecured and (Bii) shall not mature before the earlier of (xA) the maturity date of the Indebtedness refinanced and (yB) the date six months following the Revolving Maturity Date;
(dc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party Non-Guarantor to the Borrower or any other Loan Party shall be subject to SECTION Section 6.06 below;
(ed) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other GuarantorSubsidiary, to the extent said Indebtedness is permitted hereunder; provided that such Guarantees of Indebtedness of any Non-Guarantor shall be subject to Section 6.06 below;
(fe) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under purchase money financings meeting the requirements of Section 6.01(f) other than proviso (B) therein and leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") “Transportation Equipment Transactions”), in each case of motor vehicles (including off-road vehicles) and aircraft;
(Ai) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof, (Bii) Attributable Debt (as defined below) of the Borrower or any Subsidiary incurred after the date hereof Effective Date pursuant to Sale and Leaseback Transactions permitted by SECTION Section 6.04 and (Ciii) Indebtedness represented by seller notes executed by the Borrower or any Subsidiary incurred after the date hereof Effective Date in connection with Permitted Acquisitions; provided that (iA) the Indebtedness in clause (Ai) hereof is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisition, construction or improvement) after such acquisition or the completion of such construction or improvement and (iiB) the aggregate principal amount of the Indebtedness permitted by this clause (gf) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" “Attributable Debt” means, with respect to any Sale and Leaseback transactionTransaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction Transaction were capital lease obligationsCapital Lease Obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale Sale and leaseback transaction Leaseback Transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction Transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;
Appears in 1 contract
Sources: Credit Agreement (Service Corporation International)
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
: (a) Indebtedness created under the Loan Documents;
; (b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
Intentionally Deleted; (c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(c) hereto and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (x) the maturity date of the Indebtedness refinanced and (y) the date six months following the Revolving Maturity Date;
; (d) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party Guarantor to the Borrower or any other Loan Party shall be subject to SECTION Section 6.06 below;
; (e) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other Guarantor, to the extent said Indebtedness is permitted hereunder;
; provided that such Guarantees of Indebtedness of any Subsidiary that is not a Guarantor shall be subject to Section 6.06 below; (f) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under purchase money financings meeting the requirements of Section 6.01(g) other than proviso (ii) therein and leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") “Transportation Equipment Transactions”), in each case of motor vehicles (including off-road vehicles) and aircraft;; (g)
(A) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof, (B) Attributable Debt (as defined below) of the Borrower or any Subsidiary incurred after the date hereof pursuant to Sale and Leaseback Transactions permitted by SECTION 6.04 and (C) Indebtedness represented by seller notes executed by the Borrower incurred after the date hereof in connection with Permitted Acquisitions; provided that (i) the Indebtedness in clause (A) hereof is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisition, construction or improvement) after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of the Indebtedness permitted by this clause (g) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" means, with respect to any Sale and Leaseback transaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction were capital lease obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;increase
Appears in 1 contract
Sources: Revolving Credit Agreement
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(b) hereto and extensions, renewals and replacements of any such Indebtedness including the Alternative Financing or the issuance of the New Senior Notes that unless otherwise provided herein do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof; provided that any such Alternative Financing or New Senior Notes refinancing Indebtedness (A) shall be unsecured and unsecured, (B) shall not mature before the earlier of (x) the maturity a date of the Indebtedness refinanced eight years from such new issuance date, and (yC) the date six months following the Revolving Maturity Dateshall not be deemed to constitute Indebtedness;
(c) Subordinated Indebtedness;
(d) Indebtedness of the Borrower to any Subsidiary Domestic Subsidiary, other than Unrestricted Subsidiaries, and of any Subsidiary Subsidiary, other than Unrestricted Subsidiaries to the Borrower or any other Domestic Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party to the Borrower or any other Loan Party shall be subject to SECTION 6.06 below;
(e) Unsecured Guarantees Unless otherwise approved by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of Administrative Agent, in addition to any other Guarantor, to the extent said Indebtedness is permitted hereunder;
(f) , Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") as consideration for Permitted Acquisitions up to a maximum of motor vehicles (including off-road vehicles) and aircraft$15,000,000 outstanding at any one time;
(Af) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereofthereof up to a maximum of $15,000,000;
(g) Indebtedness of any Subsidiary in existence (but not incurred or created in connection with an acquisition) on the date on which such Subsidiary is acquired by the Borrower, provided (i) neither the Borrower nor any of the Subsidiaries existing before giving effect to such acquisition has any obligation with respect to such Indebtedness, (Bii) Attributable Debt (as defined below) none of the properties of the Borrower or any Subsidiary incurred of the Subsidiaries existing before giving effect to such acquisition is bound with respect to such Indebtedness and (iii) the Borrower is in compliance with the financial covenants after such acquisition;
(h) Unsecured Indebtedness of the date hereof pursuant to Sale and Leaseback Transactions Borrower not permitted by SECTION 6.04 and (C) Indebtedness represented by seller notes executed by the Borrower incurred after the date hereof in connection with Permitted Acquisitionsany other clause of this Section 6.01; provided that (i) no Default exists at the Indebtedness in clause (A) hereof time, or is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisitioncreated as a result of, construction or improvement) after such acquisition or the completion incurrence of such construction or improvement Indebtedness, and (ii) the aggregate principal amount of the such Indebtedness permitted by this clause (g) in excess of Attributable Debt shall does not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" means, with respect to any Sale and Leaseback transaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction were capital lease obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of 5,000,000; and
(i) Indebtedness in respect of financing for the Attributable Debt determined assuming termination upon the first date such lease may be terminated (acquisition of businesses in which case the Attributable Debt shall also include the amount Canada up to a maximum of the penalty, but no rent shall be considered as required to be paid under such lease subsequent $75,000,000 on terms reasonably acceptable to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;Administrative Agent.
Appears in 1 contract
Indebtedness Covenant. The Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness pursuant to: (i) the private placement notes related to the Merger, (the "PRIVATE PLACEMENT NOTES") that, together with the Term Loan do not exceed $350,000,000, and (ii) Indebtedness of the Borrower of up to $500,000,000 in public bond debt related to the Merger;
(c) Indebtedness existing on the Effective Date and set forth on SCHEDULE 6.01(CSchedule 6.01(b) hereto and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof; provided that any such refinancing Indebtedness (A) shall be unsecured and (B) shall not mature before the earlier of (x) the maturity date of the Indebtedness refinanced and (y) the date six months following the Revolving Maturity Date;
(dc) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party Non-Guarantor to the Borrower or any other Loan Party shall be subject to SECTION Section 6.06 below;
(ed) Unsecured Guarantees by the Borrower of Indebtedness of any Subsidiary and Guarantees by any Guarantor of Indebtedness of any other GuarantorSubsidiary, to the extent said Indebtedness is permitted hereunder; provided that such Guarantees of Indebtedness of any Non-Guarantor shall be subject to Section 6.06 below;
(fe) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date under purchase money financings meeting the requirements of Section 6.01(f) other than proviso (ii) therein and leases (collectively, "TRANSPORTATION EQUIPMENT LEASES") “Transportation Equipment Transactions”), in each case of motor vehicles (including off-road vehicles) and aircraft;
(A) Indebtedness of the Borrower or any Subsidiary incurred after the Effective Date to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets, or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount or change the parties directly or indirectly responsible for the payment thereof, (B) Attributable Debt (as defined below) of the Borrower or any Subsidiary incurred after the date hereof Effective Date pursuant to Sale and Leaseback Transactions permitted by SECTION Section 6.04 and (C) Indebtedness represented by seller notes executed by the Borrower or any Subsidiary incurred after the date hereof Effective Date in connection with Permitted Acquisitions; provided that (i) the Indebtedness in clause (A) hereof is incurred prior to or within 120 days (or such longer period if necessary solely to obtain any permits or licenses required in connection with such acquisition, construction or improvement) after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of the Indebtedness permitted by this clause (gf) in excess of Attributable Debt shall not exceed $75,000,000 at any time outstanding. "ATTRIBUTABLE DEBT" “Attributable Debt” means, with respect to any Sale and Leaseback transactionTransaction, the present value (computed in accordance with GAAP as if the obligations incurred in connection with such Sale and Leaseback transaction Transaction were capital lease obligationsCapital Lease Obligations) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such sale Sale and leaseback transaction Leaseback Transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of (i) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated) and (ii) the Attributable Debt determined assuming no such termination. Any determination of any rate implicit in the terms of the lease included in such Sale and Leaseback transaction Transaction made in accordance with generally accepted financial practices by the Borrower shall be binding and conclusive absent manifest error;
Appears in 1 contract
Sources: Revolving Credit Agreement (Service Corporation International)