Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except: (a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e); (b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness; (c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes; (d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices; (e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent; (f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices; (g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
Appears in 3 contracts
Sources: Credit Agreement (Enhabit, Inc.), Credit Agreement (Enhabit, Inc.), Credit Agreement (Encompass Health Corp)
Indebtedness. IncurCreate, createincur, assume or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on under the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Documents;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 outstanding on the date hereof and Section 2.23) and under the other Loan Documents listed on Schedule 7.03 and any Refinancing Notes incurred refinancings, refundings, renewals or extensions thereof; provided that (i) the terms and conditions of such extensions, renewals or refinancings of such Indebtedness do not, in the Administrative Agent’s reasonable judgment, materially impair the prospects of repayment of the Obligations by the Borrowers or impair any Borrower’s creditworthiness and (ii) such extensions, renewals or refinancings of such Indebtedness do not result in an increase in the principal amount of such Indebtedness so extended, renewed or refinanced or add any Borrower as liable with respect thereto if such Borrower was not liable with respect to Refinance such the original Indebtedness;
(c) Indebtedness of the any Borrower to any Subsidiary and of any Subsidiary to any Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesother Subsidiary;
(d) Guarantees of the Borrowers or any Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Borrowers or any consolidated Subsidiary;
(e) obligations (contingent or otherwise) of the Borrowers or any Subsidiary existing or arising under any Swap Contract (including any total rate of return Swap Contract);
(f) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the any Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(fg) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case case, provided in the ordinary course of business or consistent with past practice or industry practicesordinary business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(gh) Unsecured Indebtedness;
(i) Letter of Credit Obligations, up to a maximum amount outstanding at any time not greater than $10,000,000;
(j) Indebtedness arising from the occasional honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business and not from an overdraft credit facility granted by the bank or other cash management servicesfinancial institution;
(k) other Secured Indebtedness; and
(l) Trust Preferred Indebtedness and related Trust Preferred Guarantees and Trust Preferred Securities incurred, in each case incurred in the ordinary course executed or issued respectively, as part of business;a Trust Preferred Securities Transaction.
Appears in 3 contracts
Sources: Credit Agreement (KKR Financial Corp), Credit Agreement (KKR Financial Corp), Credit Agreement (KKR Financial Holdings LLC)
Indebtedness. Incur, create, assume or permit to exist Incur any Indebtedness, exceptIndebtedness other than:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)The Obligations;
(b) Indebtedness created hereunder (existing on the Restatement Effective Date and set forth in Schedule 5.10, including pursuant to Section 2.21, Section 2.22 extensions and Section 2.23) and under refinancings thereof which do not increase the other Loan Documents and any Refinancing Notes incurred to Refinance principal amount of such IndebtednessIndebtedness as of the date of such extension or refinancing;
(c) Indebtedness not to exceed $3,000,000 in the aggregate at any time outstanding, consisting of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesCapital Leases;
(d) Unsecured intercompany Indebtedness between Borrower and a Subsidiary Guarantor or otherwise permitted under Section 5.9(e);
(e) Unsecured Indebtedness of Borrower or its Subsidiaries incurred in the ordinary course of business owing to an insurer consisting of financing for insurance premiums payable by Borrower or any such Subsidiary to such insurer;
(f) Rate Contracts entered into by such Person in the ordinary course of business for the purpose of hedging risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of pure speculation or taking a “market view”;
(g) Contingent obligations arising with respect to customary indemnification obligations in favor of sellers in connection with Permitted Franchising Acquisitions;
(h) Indebtedness arising in connection with endorsement of checks, drafts or similar instruments of payment for deposit in the ordinary course of business;
(i) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, health disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiaryinsurance, pursuant to reimbursement or indemnification obligations to such personPerson, in each case case, incurred in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(ej) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash managementform of bids, tax tenders, statutory obligations, customary reimbursement obligations for surety bonds, performance bonds and accounting operations of the Borrower appeal and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentother similar bonds which are not overdue and not involving borrowed money;
(fk) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided not to exceed $50,000 in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness aggregate at any time arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business business, or other cash management servicespursuant to netting services or otherwise in connection with deposit accounts, in each case incurred case, so long as such Indebtedness is extinguished within 10 Business Days of the incurrence thereof; and
(l) Additional unsecured Indebtedness not to exceed $500,000 in the ordinary course of business;aggregate at any time outstanding.
Appears in 3 contracts
Sources: Credit Agreement (Zoe's Kitchen, Inc.), Credit Agreement (Zoe's Kitchen, Inc.), Credit Agreement (Zoe's Kitchen, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.016.01 to the Original Credit Agreement) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J to the Original Credit Agreement or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (w) in the case of any such Indebtedness secured by Liens on Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 2.50 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (x) in the case of any such Indebtedness secured by Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.00 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of any other such Indebtedness, the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not less than 2.00 to 1.00 or (II) no less than the Interest Coverage Ratio in effect immediately prior thereto and (z) in the case of any such Indebtedness incurred under this clause (h) by a Subsidiary other than a Subsidiary Loan Party that is incurred in contemplation of such acquisition, merger or consolidation, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding at such time pursuant to Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $150,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation shall be subject to the last paragraph of this Section 6.01 and the incurrence (but not assumption) of any such term loan Indebtedness that is secured by Other First Liens shall be subject to the last paragraph of Section 6.02; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $225,000,000 and 0.35 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (ii) Capitalized Lease Obligations Incurred by the Borrower or any Subsidiary to finance (whether prior to or within 270 days after) the acquisition, lease, construction, repair, replacement or improvement of computer equipment (including servers), storage equipment, networking equipment and other equipment and similar assets related to the business of the Borrower and its Subsidiaries and any finance lease obligations not prohibited hereunder and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03, (ii) Capitalized Lease Obligations or other obligations or deferrals attributable to capital spending and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $350,000,000 and 0.475 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions or Permitted Cure Securities;
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) [reserved];
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 2.50 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(h)(i) (to the extent set forth therein), this Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $150,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) shall be subject to the last paragraph of this Section 6.01 and the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) in the form of term loans shall be subject to the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 3.00 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(h)(i) (to the extent set forth therein), Section 6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $150,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(h)(i) (to the extent set forth therein), Section 6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $150,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $100,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time; provided that the incurrence of any Indebtedness for borrowed money pursuant to thi
Appears in 3 contracts
Sources: Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption Agreement (Rackspace Technology, Inc.), Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) the Existing Notes, (ii) [reserved] and (iii) other Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary Subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eBorrower);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary and its Relevant Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any SubsidiaryRelevant Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case Person in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(e) Indebtedness of the Borrower to or any Relevant Subsidiary and of any Subsidiary owing to the Borrower or any other Subsidiary; providedSubsidiary of the Borrower to the extent permitted by Section 6.04, provided that Indebtedness owed by of any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) Loan Party (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesand Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business, provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Relevant Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Relevant Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger, amalgamation or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement, provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), would not exceed the greater of $125.0 million and 2.0 % of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable, for which financial statements have been delivered pursuant to Section 5.04 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Relevant Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed the greater of $125.0 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by the Borrower or any Relevant Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(k) not in excess of the greater of $100.0 million and 1.5 % of Consolidated Total Assets;
(l) Guarantees (i) by any Loan Party or any other Relevant Subsidiary of any Indebtedness of the Borrower or any other Loan Party expressly permitted to be incurred under this Agreement; provided, that a Relevant Subsidiary that is not a Loan Party shall not be permitted to Guarantee Indebtedness of a Loan Party pursuant to this sub-clause (i) unless such Relevant Subsidiary becomes (and remains) a Guarantor hereunder while such Guarantee is outstanding, (ii) by the Borrower or any Relevant Subsidiary of Indebtedness of any Subsidiary that is not a Loan Party to the extent permitted by Section 6.04, (iii) by any Relevant Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party and (iv) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(k) or (p); provided that Guarantees by any Loan Party under this Section 6.01(l) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to be used, for Subordinated Intercompany Debt;
(m) Indebtedness arising from agreements of the Borrower or any Relevant Subsidiary of the Borrower providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(n) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(o) Indebtedness consisting of Permitted Junior Debt;
(p) Indebtedness of Relevant Subsidiaries that are Foreign Subsidiaries (including letters of credit or bank guarantees (other than Revolving Letters of Credit issued pursuant to Section 2.05) for working capital purposes incurred in the ordinary course of businessbusiness on ordinary business terms in an aggregate amount not to exceed the greater of $25.0 million and 0.5% of Consolidated Total Assets outstanding at any time);
(i) Indebtedness incurred and/or assumed in connection with Section 6.04(j) or 6.04(q); provided that the aggregate amount of such Indebtedness outstanding pursuant to this Section 6.01(q) shall not exceed the greater of $150.0 million and 2.5% of Consolidated Total Assets and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; and
(r) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (q) above. For purposes of determining compliance with this Section 6.01, (i) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of Indebtedness permitted in this Section 6.01, the Borrower or a Relevant Subsidiary, as the case may be, in its sole discretion, may classify, at the time of incurrence, such item of Indebtedness (or any portion thereof) in any such category and will only be required to include such Indebtedness (or any portion thereof) in one of the categories of Indebtedness permitted in this Section 6.01; and (ii) at the time of incurrence, the Borrower or a Relevant Subsidiary, as the case may be, in its sole discretion, may divide and classify an item of Indebtedness (or any portion thereof) in more than one of the categories of Indebtedness permitted in this Section 6.01.
Appears in 3 contracts
Sources: Amendment (Crestwood Equity Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred in respect thereof (other than intercompany Indebtedness Refinanced with Indebtedness owed to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes incurred to Refinance such IndebtednessIndebtedness in respect thereof;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness in respect of self-insurance and Indebtedness and other obligations owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesnorm;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J hereto or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesnorm, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesnorm;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in each case incurred in the ordinary course of business or other cash management services, in each case services incurred in the ordinary course of businessbusiness or consistent with past practice or industry norm;
Appears in 3 contracts
Sources: Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Indebtedness. IncurEach of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or permit suffer to exist any Indebtedness, except:
(a) (xi) Indebtedness under the Loan Documents;
(other than ii) Existing Indebtedness as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth on Schedule 7.2.1 (including any extensions or renewals thereof; provided there is no increase in the amount thereof or other significant change in the terms thereof unless otherwise specified on Schedule 6.017.2.1);
(iii) as and to the extent permitted pursuant to clause (yix) any of the definition of “Permitted Refinancing Liens”, Indebtedness incurred with respect to Refinance such Indebtedness; provided, that any Purchase Money Security Interests and Capital Leases;
(iv) Indebtedness outstanding pursuant to this clause (a) which is owed by of a Loan Party to any subsidiary another Loan Party;
(v) Indebtedness of the Borrower that a Loan Party to a Subsidiary which is not a Loan Party shall be which is subordinated in right of payment pursuant to the same extent required pursuant to Section 6.01(e)Intercompany Subordination Agreement;
(bvi) Any (i) Lender Provided Interest Rate Hedge, (ii) other Interest Rate Hedge approved by the Administrative Agent, or (iii) Indebtedness created hereunder under any Other Lender Provided Financial Services Product; provided, however, the Loan Parties and their Subsidiaries shall enter into a Lender Provided Interest Rate Hedge or another Interest Rate Hedge only for hedging (including pursuant to Section 2.21, Section 2.22 and Section 2.23rather than speculative) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(dvii) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with Permitted Acquisitions (A) to sellers in an amount not to exceed $25,000,000 in the cash managementaggregate outstanding at any time, tax provided that such Indebtedness has a maturity of at least 180 days following the Expiration Date and accounting operations of the Borrower and the Subsidiaries) shall be is subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory acceptable to the Administrative Agent, and (B) as disclosed in a certain confidential side letter of even date herewith;
(fviii) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course financing of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case insurance premiums; incurred in the ordinary course of business;
(ix) Indebtedness in respect to any Lender’s credit card program incurred in the ordinary course of business;
(x) Indebtedness to customs brokers, freight forwarders, common carriers, landlords and like persons incurred in the ordinary course of business;
(xi) Indebtedness with respect to indemnities, warranties, statutory obligations, and surety, appeal and supersedeas bonds incurred in the ordinary course of business and which is not overdue;
(xii) Indebtedness consisting of obligations of a Loan Party or any Subsidiary under any lease (i) which is accounted for by the lessee thereof as an operating lease, and (ii) under which such lessee is intended to be the “owner” of the leased property for federal income tax purposes; and
(xiii) other Indebtedness not specifically described herein in an aggregate principal amount not to exceed $20,000,000 in any fiscal year of the Borrowers. Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, prepay, redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity thereof in any manner any Indebtedness, or make any payment in violation of any subordination terms of any Subordinated Indebtedness in excess of the sum of $2,500,000, except (a) as long as no Trigger Event Election has occurred and no Event of Default or Potential Default then exists or would arise therefrom and, after giving effect to any such payment, the Borrowers have on hand the Minimum Cash Requirement, regularly scheduled repayments, prepayments, repurchases, redemptions or defeasances of Indebtedness described in this Section 7.2.1 (other than Subordinated Indebtedness), and (b) as long as no Trigger Event Election has occurred and no Event of Default or Potential Event of Default then exists or would arise therefrom, and, after giving effect to any such payment, the Borrowers have on hand the Minimum Cash Requirement, repayments, defeasances and prepayments of Subordinated Indebtedness in accordance with the subordination terms thereof.
Appears in 3 contracts
Sources: Revolving Credit Facility (Retail Ventures Inc), Revolving Credit Facility (DSW Inc.), Revolving Credit Facility (DSW Inc.)
Indebtedness. IncurCreate, createincur, assume or permit suffer to exist any Indebtedness, exceptIndebtedness other than the following:
(a) the Loans and Obligations;
(xb) Mortgage Indebtedness as of the date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and any Permitted Refinancings thereof;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (yi) any Permitted Refinancing agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance pursuant to such agreement, or (ii) any Mortgage Indebtedness incurred to Refinance finance, or assumed in connection with, an acquisition or Investment in a Hotel Property (or part of a Hotel Property) or the direct or indirect Equity Interests of any Person that owns a Hotel Property, not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for such Indebtedness; provided, that acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness outstanding pursuant to this clause (a) which is owed by of a Loan Party to any subsidiary other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of the Borrower a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; provided that any such Indebtedness of a Loan Party to a Subsidiary or Controlled JV Subsidiary that is not a Loan Party shall be contractually subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness prior repayment in full of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees Banking Services;
(g) trade payables and similar obligations, in each case provided current obligations to a trade creditor incurred in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or consistent with past practice any of its Subsidiaries or industry practicesControlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created, or relating to obligations or liability incurred, in the ordinary course of business, including those incurred to secure in respect of workers compensation claims, health, safety and environmental disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary of the Borrower that is not a Loan Party in the ordinary course of business not more than 180 days before or consistent with past practice after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution improvement of a checkfixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, draft in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or similar instrument drawn against insufficient funds improvement of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i) shall be without recourse to any Loan Parties and (ii) any Loan Party in an aggregate amount at any time not to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or other cash management servicesafter the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiary, in each case order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;
(j) Indebtedness in respect of Swap Contracts designed to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes and guarantees thereof;
(k) Indebtedness incurred under the ERF Program in an aggregate amount at any time not to exceed $100,000,000 (or such other increased amount as may be approved by the Required Lenders);
(l) without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
(m) (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries to the extent consisting of Guarantees that do not provide any greater recourse to the applicable Loan Party than the Mortgage Recourse Carve-Outs; provided that such Guarantees are entered into in the ordinary course of business and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties in respect of Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries in the ordinary course of business;; and
(o) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance of the foregoing, no Property-Level Subsidiary shall create, incur, assume or suffer to exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.
Appears in 3 contracts
Sources: Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc), Credit Agreement (Ashford Hospitality Trust Inc)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01 (excluding Indebtedness under clause (ii) of this clause (a) and clause (b) of this Section 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary Subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to Borrower) and (ii) Indebtedness under the same extent required pursuant to Section 6.01(e)Parent Subordinated Note on the Closing Date;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary and its Relevant Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.12;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any SubsidiaryRelevant Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such personPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, in each case in the ordinary course of business or consistent with past practice or industry practicessuch obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to or any Relevant Subsidiary and of any Subsidiary owing to the Borrower or any other Subsidiary; providedSubsidiary of the Borrower to the extent permitted by Section 6.04, provided that Indebtedness owed by of any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) Loan Party (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business, provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Relevant Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Relevant Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger, amalgamation or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness, provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), would not exceed the greater of U.S.$30.0 million and 5.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable, for which financial statements have been delivered pursuant to Section 5.04;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Relevant Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed the greater of U.S.$30.0 million and 5.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by the Borrower or any Relevant Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(k) not in excess of the greater of U.S.$30.0 million and 5.5% of Consolidated Total Assets;
(l) Guarantees (i) by any Loan Party of any Indebtedness of the Borrower or any other Loan Party expressly permitted to be incurred under this Agreement, (ii) by the Borrower or any Relevant Subsidiary of Indebtedness of any Subsidiary that is not a Loan Party to the extent permitted by Section 6.04, (iii) by any Relevant Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party and (iv) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(k) or (p); provided that Guarantees by any Loan Party under this Section 6.01(l) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to be used, for Subordinated Intercompany Debt;
(m) Indebtedness arising from agreements of the Borrower or any Relevant Subsidiary of the Borrower providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(n) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(o) Indebtedness consisting of Permitted Junior Debt;
(p) Indebtedness of Relevant Subsidiaries that are Foreign Subsidiaries (including letters of credit or bank guarantees (other than Revolving Letters of Credit issued pursuant to Section 2.05) for working capital purposes incurred in the ordinary course of businessbusiness on ordinary business terms in an aggregate amount not to exceed the greater of U.S.$5.0 million and 1% of Consolidated Total Assets outstanding at any time);
(i) Indebtedness incurred and/or assumed in connection with Section 6.04(j); provided that the aggregate amount of such Indebtedness outstanding pursuant to this Section 6.01(q) shall not exceed U.S.$50.0 million and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtdness; and
(r) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (q) above.
Appears in 3 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Indebtedness. IncurCreate, createincur, assume or permit suffer to exist any IndebtednessIndebtedness or Contingent Obligation, except:
(a) the Finance Obligations, including any Indebtedness of the Parent, the Company or any Restricted Subsidiary in connection with the Letters of Credit and this Agreement;
(xb) Indebtedness of (i) a Credit Party owing to any Restricted Subsidiary; provided that all such Indebtedness shall be subordinated to the Finance Obligations on terms and conditions satisfactory to the Administrative Agent, and (ii) any Restricted Subsidiary owing to a Credit Party or any other than as described Restricted Subsidiary to the extent the Indebtedness referred to in this clause (b) evidences a loan or advance permitted under Section 6.01(b9.7;
(c) belowIndebtedness arising under any Swap Contract permitted by Section 9.11;
(d) existing Indebtedness consisting of reimbursement obligations under surety, indemnity, performance, release and appeal bonds and guarantees thereof and letters of credit required in the ordinary course of business or committed on in connection with the Effective Date enforcement of rights or claims of a Credit Party or its Restricted Subsidiaries;
(providede) (i) Indebtedness of the Company or any of its Restricted Subsidiaries incurred to finance the acquisition, that repair, replacement, 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; provided that (A) such Indebtedness that is owed incurred prior to or within ninety (90) days after such acquisition, repair, replacement, construction or improvement, (B) the aggregate principal amount of Indebtedness permitted by this clause (e) shall not at any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of time exceed $5,000,000 shall be set forth in Schedule 6.01) 50,000,000 and (yii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(f) [reserved];
(i) Indebtedness in respect of the Unsecured 2023 Notes outstanding on the Closing Date in an aggregate principal amount at any time outstanding not to Refinance such Indebtednessexceed $555,251,000 and any Permitted Refinancing Indebtedness in respect thereof;
(ii) Indebtedness in respect of the Unsecured 2025 Notes outstanding on the Closing Date in an aggregate principal amount at any time outstanding not to exceed $380,020,000 and any Permitted Refinancing Indebtedness in respect thereof;
(iii) Indebtedness in respect of the Unsecured 2026 Notes outstanding on the Closing Date in an aggregate principal amount at any time outstanding not to exceed $386,323,000 and any Permitted Refinancing Indebtedness in respect thereof; providedand
(iv) Indebtedness in respect of the Secured 2026 Notes in an aggregate principal amount at any time outstanding not to exceed $2,100,000,000 and any Permitted Refinancing Indebtedness in respect thereof;
(h) Indebtedness of the Parent, that the Company or any of its Restricted Subsidiaries existing on the Closing Date and listed on Schedule 9.2(h) hereto and any Permitted Refinancing Indebtedness outstanding pursuant to this clause in respect thereof;
(ai) (A) unsecured Indebtedness of the Parent, the Company or any Restricted Subsidiary: (i) the principal of which is owed by a Loan Party not required to any subsidiary of be repaid, in whole or in part, before the Borrower date that is not a Loan Party shall be the 91st day following the Revolving Credit Termination Date, (ii) that is subordinated in right of payment to the same extent required Obligations under the Credit Documents pursuant to Section 6.01(e)payment and subordination provisions satisfactory in form and substance to the Administrative Agent, (iii) the covenants and default and remedy provisions applicable to such Indebtedness shall be, taken as a whole, not materially less favorable to the Credit Parties than then current market terms for the applicable type of Indebtedness or otherwise reasonably satisfactory in form and substance to the Administrative Agent, and (iv) the Payment Conditions are satisfied and (B) any Permitted Refinancing Indebtedness in respect thereof;
(bA) Indebtedness created hereunder (including of any Person that becomes a Restricted Subsidiary after the date hereof pursuant to Section 2.21a Permitted Acquisition and Indebtedness of any Person secured by assets acquired in a Permitted Acquisition, Section 2.22 provided, that (i) such Indebtedness exists at the time such Person becomes Restricted Subsidiary or such assets are acquired and Section 2.23is not created in contemplation of or in connection with such Person becoming a Subsidiary or such assets being acquired and (ii) that aggregate principal amount of Indebtedness permitted by this clause (j) shall not at any one time exceed $50,000,000 and under the other Loan Documents and (B) any Permitted Refinancing Notes incurred to Refinance such IndebtednessIndebtedness in respect thereof;
(ck) Indebtedness the following Contingent Obligations:
(i) guarantees of obligations to third parties made in the ordinary course of business in connection with relocation of employees of the Borrower Parent, the Company or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesof its Restricted Subsidiaries;
(dii) guarantees by the Parent, the Company and its Restricted Subsidiaries of obligations incurred in the ordinary course of business for an aggregate amount not to exceed $10,000,000 at any time; provided, however, that any such Contingent Obligation in the form of a guarantee granted by a Restricted Subsidiary shall only be given in accordance with Section 9.15;
(iii) Contingent Obligations existing on the Closing Date and described in Schedule 9.2(k) including any extensions or renewals thereof;
(iv) Contingent Obligations in respect of Swap Contracts;
(v) Contingent Obligations pursuant to the Credit Documents;
(vi) guarantees by (A) a Credit Party of Indebtedness of its Restricted Subsidiaries permitted under Section 9.2(i) and (B) a Credit Party or any Restricted Subsidiary of other obligations of Restricted Subsidiaries not prohibited hereunder; and
(vii) guarantees by any Restricted Subsidiary of Indebtedness and other obligations of a Credit Party; provided that the Indebtedness or obligations so guaranteed is permitted pursuant to this Section 9.2; and provided further that any such guarantees shall only be given in accordance with Section 9.15.
(l) Indebtedness owed to consisting of bona fide purchase price adjustments, indemnification obligations, obligations under deferred compensation or similar arrangements and items incurred in connection with asset sales and acquisitions permitted under Section 9.6 or Section 9.7;
(including obligations m) Indebtedness in respect of letters of credit or (including trade letters of credit), bank guarantees or similar instruments for issued or incurred in the benefit of) ordinary course of business, including in respect of card obligations or any person providing workers’ compensationoverdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers, workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification reimbursement-type obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesregarding workers’ compensation claims;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(fn) Indebtedness in respect of performance bondsjudgments and decrees that do not constitute an Event of Default;
(o) Indebtedness consisting of obligations to make payments to current or former officers, bid bondsdirectors and employees, appeal bondstheir respective estates, surety bonds and completion guarantees and similar obligationsspouses or former spouses with respect to the cancellation, or to finance the purchase or redemption, of Equity Interests of the Company to the extent permitted by Section 9.9;
(p) Indebtedness consisting of (i) the financing of insurance premiums with the providers of such insurance or their affiliates or (ii) take-or-pay obligations contained in supply arrangements, in each case provided in the ordinary course of business or consistent with past practice or industry practicescase, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;; and
(q) any other Indebtedness in an aggregate principal amount outstanding of which shall not exceed at any time outstanding $25,000,000.
Appears in 3 contracts
Sources: Credit Agreement (NGL Energy Partners LP), Credit Agreement (NGL Energy Partners LP), Credit Agreement (NGL Energy Partners LP)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 2,000,000 shall be set forth in on Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Loan Party shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the global intercompany note substantially in the form of Exhibit J hereto or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests, where such acquisition, merger or consolidation is not prohibited by this Agreement (including a Permitted Business Acquisition); provided, that, (x)(I) the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof, and any related transactions is no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, and (II) the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the net cash proceeds of such Indebtedness incurred on such date against the applicable amount of Consolidated Debt for purposes of such calculation), and any related transactions is not greater than 4.50 to 1.00 or (y) the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is no greater than the Total Net Leverage Ratio in effect immediately prior thereto; provided that (1) the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation (except for any seller note or other seller financing) shall be subject to the last paragraph of this Section 6.01 and (2) the aggregate outstanding principal amount of Indebtedness permitted under this clause (h)(i) incurred by a Subsidiary other than a Subsidiary Loan Party in contemplation of such acquisition, merger or consolidation, together with the aggregate principal amount of Indebtedness of a Subsidiary other than a Subsidiary Loan Party then outstanding pursuant to Section 6.01(s)(i), shall not exceed the greater of $10,000,000 and 4.25% of Consolidated Total Assets as at the end of the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed (A) the greater of $10,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period plus (B) any additional amounts, so long as immediately after giving effect to the incurrence of such additional amounts under this clause (B) and the use of proceeds thereof, the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 4.50 to 1.00, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capitalized Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $10,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(l) [Reserved];
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) other Indebtedness or Disqualified Stock of the Borrower or any Subsidiaries in an aggregate outstanding principal amount or liquidation preference not greater than 100.0% of the net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or any Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries and other than Permitted Cure Securities), to the extent that such net cash proceeds do not increase the Cumulative Credit and do not constitute Excluded Contributions;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) Indebtedness secured by Liens on the Collateral ranking pari passu with the Liens on the Collateral securing the Term B Loans so long as (x) at the time of incurrence thereof, no Default or Event of Default shall have occurred and be continuing and (y) immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.75 to 1.00; provided that, (1) the net cash proceeds of Indebtedness incurred under this clause (r) at such time shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Net First Lien Leverage Ratio and (2) the incurrence of any Indebtedness pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness so long as (x) at the time of incurrence thereof, no Default or Event of Default shall have occurred and be continuing, (y) immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 4.50 to 1.00 and (z) the aggregate principal amount of Indebtedness permitted under this clause (s)(i) incurred by a Subsidiary other than a Subsidiary Loan Party, together with the aggregate principal amount of Indebtedness of a Subsidiary other than a Subsidiary Loan Party then outstanding pursuant to Section 6.01(h)(i) incurred in contemplation of an acquisition, merger or consolidation, shall not exceed the greater of $10,000,000 and 4.25% of Consolidated Total Assets as at the end of the then most recently ended Test Period; provided that, (1) the net cash proceeds of Indebtedness incurred under this clause (s) at such time shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Total Net Leverage Ratio and (2) the incurrence of any Indebtedness pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $10,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements.
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Receivables Financings;
(x) obligations in respect of Cash Management Agreements;
(y) Refinancing Notes and any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time; provided, that (1) there shall be no obligor in respect of any such Indebtedness that is not a Loan Party and (2) the incurrence of any Indebtedness pursuant to this clause (z)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) Guarantees of Indebtedness under ordinary course customer financing lines or credit;
(bb) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $10,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisitions or any other Investment permitted hereunder;
(ee) Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower and its Subsidiaries;
(ff) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit; and
(gg) all premium (if any, including tender premiums) expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (ff) above or refinancings thereof. For purposes of determining compliance with this Section 6.01, 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 respec
Appears in 2 contracts
Sources: First Lien Credit Agreement (AP Gaming Holdco, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) the Obligations and Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that of any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of under the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Documents;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness[reserved];
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, securing unemployment insurance and other social security laws or regulation, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other similar obligations to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesSubsidiary Guarantor;
(ed) Indebtedness of the Borrower to any Subsidiary Guarantor and of any Subsidiary Guarantor to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentGuarantor;
(fe) Indebtedness in respect of performance bondsbids, bid bondstrade contracts (other than for debt for borrowed money), leases (other than Capital Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, surety bonds performance, performance and completion and return of money bonds, government contracts, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business (including Indebtedness in respect of letters of credit, bank guarantees or consistent similar instruments in lieu of such items to support the issuance thereof);
(f) Indebtedness in respect of netting services, overdraft protection and similar arrangements, in each case, in connection with past practice or industry practicescash management and deposit accounts;
(g) Capital Lease Obligations and purchase money Indebtedness arising from (including any industrial revenue bond, industrial development bond and similar financings) incurred by the honoring Borrower or any Subsidiary Guarantor prior to or within two hundred seventy (270) days after the acquisition, lease, repair or improvement of the respective asset in order to finance such acquisition, lease, repair or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate outstanding principal amount that at the time of, and after giving effect to, the incurrence thereof would not exceed $15 million for the Test Period most recently ended on or prior to the date of determination for which financial statements are available;
(h) the ABL Obligations; provided, however, with respect to the principal amount of any loans incurred under the ABL DIP Credit Agreement and Pre-Petition ABL Credit Agreement, the principal amount thereof shall not exceed $110,000,000.00;
(i) Guarantees (i) by the Loan Parties of the Indebtedness described in Section 6.01(h), or (ii) by the Borrower or any Loan Party of any Indebtedness of any other Loan Party permitted to be incurred under this Agreement; provided that no Guarantee by Holdings or any of its Subsidiaries of Indebtedness described in Section 6.01(h) shall be permitted unless Holdings or the applicable Subsidiaries, as the case may be, shall have also provided a Guarantee of the Obligations under the Loan Documents on substantially the terms set forth in the applicable Guarantee of such Indebtedness or on terms acceptable to the Administrative Agent (provided, however, it being understood and agreed that the Guarantees hereunder shall only be secured by the Collateral);
(j) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business, in each case, in accordance with the Approved Budget;
(k) Indebtedness existing on the Closing Date and set forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(l) Indebtedness supported by a bank Letter of Credit issued under (and as defined in) the ABL DIP Credit Agreement, in a principal amount not in excess of the stated amount of such Letter of Credit;
(m) Indebtedness incurred by the Borrower and any Subsidiary Guarantor representing deferred compensation to directors, officers, employees, members of management and consultants of Holdings, any Parent Entity, the Borrower or other financial institution any Subsidiary Guarantor in the ordinary course of a checkbusiness, draft in each case, in accordance with the Approved Budget;
(n) Indebtedness in respect of (x) letters of credit, bankers’ acceptances supporting trade payables, warehouse receipts or similar instrument drawn against insufficient funds facilities entered into in the ordinary course of business or (y) any Letter of Credit issued under (and as defined in) the ABL DIP Credit Agreement in favor of any issuing bank under the ABL DIP Credit Agreement to support any Defaulting Lender’s (as defined in the ABL DIP Credit Agreement) participation in Letters of Credit issued under and as defined in the ABL DIP Credit Agreement;
(o) Indebtedness arising out of the creation of any Lien (other cash management services, in each case than for Liens securing debt for borrowed money) permitted under Section 6.02;
(p) Indebtedness incurred in the ordinary course of businessbusiness in respect of obligations of the Borrower or any Subsidiary Guarantor to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services;
(q) unfunded pension fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business to the extent that they are permitted to remain unfunded under Applicable Law;
(r) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on Indebtedness described in paragraphs (a) through (q) above. Notwithstanding any of the foregoing, other than the Indebtedness contemplated by Section 6.01(h) and as set forth in the Final Order, no Indebtedness permitted under this Section 6.01 shall be permitted to have an administrative expense claim status under the Bankruptcy Code senior to or pari passu with the superpriority administrative expense claims of the Administrative Agent and the Lenders.
Appears in 2 contracts
Sources: Senior Secured Super Priority Debtor in Possession Delayed Draw Term Loan Agreement (Tuesday Morning Corp/De), Debtor in Possession Delayed Draw Term Loan Agreement (Franchise Group, Inc.)
Indebtedness. IncurThe Borrower will not, nor will it permit any Subsidiary to, create, assume incur or permit suffer to exist any Indebtedness, except:
(ai) The Loans and the Reimbursement Obligations.
(xii) Indebtedness (other than as existing on the date hereof and described in the Disclosure Schedule.
(iii) Indebtedness arising under Rate Management Transactions permitted by Section 6.01(b7.11.
(iv) belowContingent Obligations permitted by Section 7.10.
(v) existing Non-recourse Indebtedness as to which none of Borrower or committed on the Effective Date its Subsidiaries (providedi) provides any guaranty or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that any such Indebtedness that would constitute Indebtedness) or (ii) is owed to any person other than the Borrower and/or one directly or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and indirectly liable (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtednessas a guarantor or otherwise); provided, that any after giving effect to such Indebtedness outstanding pursuant from time to this clause time, Borrower is not in violation of Article VIII.
(avi) Indebtedness of Borrower in respect of guarantee obligations of Cimarex Energy Services, Inc., an Oklahoma corporation, which is owed do not in the aggregate exceed $75,000,000 at any one time outstanding.
(vii) Indebtedness evidenced by a Loan Party the Senior Notes, and guarantee obligations of Subsidiaries in respect thereof; provided, that, such guarantee obligations exist as of the date hereof, are required by the terms of the Indentures, or are otherwise on terms and conditions satisfactory to any subsidiary the Administrative Agent in its sole reasonable discretion.
(viii) Permitted Bond Indebtedness, and guarantee obligations of Subsidiaries of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensationthereof, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash managementthat, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement such guarantee obligations are on terms reasonably and conditions satisfactory to the Administrative Agent;, in its sole reasonable discretion.
(fix) Indebtedness in respect of performance bondsany 9.60% Senior Notes Refinancing, bid bondsand guarantee obligations of Subsidiaries of the Borrower in respect thereof, appeal bondsprovided, surety bonds that, such guarantee obligations are on terms and completion guarantees and similar obligationsconditions satisfactory to the Administrative Agent, in each case provided its sole reasonable discretion.
(x) Financial Contracts permitted under Section 7.11.
(xi) Miscellaneous items of Indebtedness not described in subsections (i) through (x) above which do not in the ordinary course aggregate (taking into account all such Indebtedness of business or consistent with past practice or industry practices, including those incurred to secure health, safety Borrower and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(gits Subsidiaries) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;exceed $25,000,000 at any one time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (Cimarex Energy Co), Credit Agreement (Cimarex Energy Co)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.12;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided, that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness owed by any Loan Party to of any Subsidiary that is not a Guarantor incurred pursuant Subsidiary Loan Party owing to this the Loan Parties shall be subject to Section 6.01(e6.04(b) and (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations ii) Indebtedness of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Loan Party to Holdings or any Subsidiary that is not a Subsidiary Loan Party (the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided, that (x) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of notification to the Borrower of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to such acquisition, merger or consolidation, the assumption and incurrence of any Indebtedness and any related transactions, the Borrower shall be in Pro Forma Compliance;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases permitted under Section 6.03, would not exceed the greater of $75.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $75.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Borrower pursuant to (i) the Second Lien Notes in an aggregate principal amount that is not in excess of $600.0 million, (ii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of $300.0 million, (iii) the Senior Secured Notes in an aggregate principal amount that is not in excess of $325 million and (iv) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(m) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in paragraph (1) of this Section 6.01, so long as the Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof is subordinated substantially on terms as set forth in the Senior Subordinated Notes Indenture with respect to the Senior Subordinated Notes, and so long as any Liens securing the Guarantee of the Second Lien Notes or any Permitted Refinancing Indebtedness in respect thereof are subject to the Intercreditor Agreement, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iv) by any Foreign Subsidiary of Indebtedness of another Foreign Subsidiary, and (v) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as the Guarantee of the Senior Subordinated Notes is under the Senior Subordinated Notes Indenture;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case case, incurred or assumed in connection with the Transactions and any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(o) Indebtedness in respect of (A) letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) in the ordinary course of business or (B) letters of credit issued in favor of the Swingline Lender or the Issuing Bank pursuant to arrangements designed to eliminate such Swingline Lender’s or Issuing Bank’s risk with respect to a Defaulting Lender’s participation in Swingline Loans or Letters of Credit, respectively, as contemplated by Section 2.04(a) or 2.05(a), respectively;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take or pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) Indebtedness consisting of Permitted Additional Debt and Permitted Refinancing Indebtedness in respect thereof so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Total Net First Lien Leverage Ratio on a Pro Forma Basis shall not be greater than 3.00 to 1.00;
(s) Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed $50.0 million outstanding at any time;
(t) unsecured Indebtedness in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(u) Indebtedness representing deferred compensation to employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness in connection with Permitted Receivables Financings;
(w) Indebtedness of the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and in the Security Documents (it being understood, however, that for a period of 30 consecutive days during each fiscal year of the Borrower the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed $10.0 million);
(x) all premium (if any), interest (including post petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (w) above.
Appears in 2 contracts
Sources: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed or anticipated in the future to be outstanding on the Effective Signing Date (provided, that any such Indebtedness that is owed incurred pursuant to any person other than the Borrower and/or one or more of its Subsidiaries, this clause (a)(i) in an aggregate principal amount in excess of $5,000,000 35,000,000 or anticipated on the Signing Date to be outstanding in the future, shall be set forth in on Schedule 6.01) and (yii) Indebtedness existing or committed, or anticipated in the future to be outstanding, on the Spinoff Date (provided that any Indebtedness incurred pursuant to this clause (a)(ii) shall be permitted only if the Administrative Agent consents thereto (in its reasonable discretion) and Schedule 6.01 is updated accordingly to include such Indebtedness) and any Permitted Refinancing Indebtedness incurred to Refinance such IndebtednessIndebtedness incurred pursuant to this clause (a); provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Loan Obligations under this Agreement on customary terms;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower Parent or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Parent or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower Parent to any Subsidiary and of any Subsidiary to the Borrower Parent or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Loan Party owing to a Loan Party incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentcustomary terms;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Spinoff Date or a person merged or consolidated with Parent, any Borrower or any Subsidiary after the Spinoff Date and Indebtedness otherwise assumed by any Loan Party in connection with a Permitted Acquisition; provided, that, (x) Indebtedness incurred pursuant to preceding sub clause (h)(i) shall be in existence prior to such Permitted Acquisition and shall not have been created in contemplation thereof or in connection therewith; (ii) Indebtedness incurred to finance any Permitted Acquisition after the Spinoff Date; provided that (i) before and after giving effect to such Permitted Acquisition on a Pro Forma Basis, no Default or Event of Default exists and (ii) after giving effect to such acquisition on a Pro Forma Basis, either (x) the Total Net Leverage Ratio shall not be greater than 2.25 to 1.00 or (y) the Total Net Leverage Ratio shall not be greater than the Total Net Leverage Ratio in effect immediately prior to such Permitted Acquisition and (iii) any Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness incurred pursuant to this clause (h);
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness (including, for the avoidance of doubt, any Indebtedness in connection with sale leaseback transactions) incurred by Parent or any Subsidiary prior to or within 360 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i), would not exceed the greater of $500,000,000 and 5.0% of Consolidated Total Assets when incurred, created or assumed, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(j) [reserved];
(k) (x) other Indebtedness of Parent or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $750,000,000 and 7.5% of Consolidated Total Assets when incurred, created or assumed and (y) any Permitted Refinancing Indebtedness in respect thereof;
(l) the Senior Notes and any Permitted Refinancing Indebtedness in respect thereof;
Appears in 2 contracts
Sources: Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)
Indebtedness. IncurNeither the Borrowers nor the Subsidiary Guarantors shall directly or indirectly, create, incur, assume or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that of any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of under the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Documents;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 outstanding on the Closing Date and Section 2.23listed on Schedule 7.03(b) and under the other Loan Documents and any Permitted Refinancing Notes incurred to Refinance such Indebtednessthereof;
(c) Guarantees by any Borrower or Subsidiary Guarantor in respect of Indebtedness of the any Borrower or any Subsidiary pursuant Guarantor otherwise permitted hereunder; provided that if the Indebtedness being guaranteed is subordinated to Hedging Agreements entered into for non-speculative purposesthe Obligations, such Guarantee shall be subordinated to the Guarantee of the Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(d) Indebtedness owed of any Borrower or Subsidiary Guarantor owing to any Borrower or Subsidiary Guarantor (or issued or transferred to any Parent Company of a Loan Party which is substantially contemporaneously transferred to a Loan Party);
(e) Indebtedness in respect of Swap Contracts designed to hedge against any Borrower’s or Subsidiary Guarantor’s exposure to interest rates, foreign exchange rates or other commodity pricing risks incurred in the ordinary course of business and not for speculative purposes;
(f) Indebtedness representing deferred compensation to employees of any Borrower (or any Parent Company thereof) or any of its Subsidiaries incurred in the ordinary course of business;
(g) Indebtedness consisting of promissory notes issued by any Borrower or Subsidiary Guarantor to current or former officers, managers, consultants, directors and employees of any Borrower (or any Parent Company thereof) or any of its Subsidiaries, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of any Borrower or any Parent Company of such Borrower or any Subsidiary permitted by Section 7.06;
(h) Indebtedness incurred by any Borrower or Subsidiary Guarantor in connection with the Transactions or an Investment expressly permitted hereunder or any Disposition, in each case, constituting indemnification obligations or obligations in respect of purchase price (including earnouts) or other similar adjustments;
(i) Indebtedness consisting of obligations of any Borrower or Subsidiary Guarantor under deferred compensation or other similar arrangements incurred by such Person in connection with the Transactions and Investments expressly permitted hereunder;
(j) Cash Management Obligations and other Indebtedness in respect of netting services, automatic clearinghouse arrangements, overdraft protections and similar arrangements in each case in connection with deposit accounts;
(i) Indebtedness of any Borrower or Subsidiary Guarantor, in an aggregate principal amount at any time outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed $10,000,000 at such time, plus (ii) additional Indebtedness of any Borrower or Subsidiary Guarantor in an aggregate outstanding principal amount not greater than one hundred percent (100.0%) of the net cash and Cash Equivalent proceeds received by any Borrower up to such time from (x) the issuance or sale of its Qualified Equity Interests and/or (y) a contribution to its common equity with the net cash and Cash Equivalent proceeds from the issuance and sale by any Borrower (or any Parent Company of such Borrower) of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, any Borrower or Subsidiary Guarantor and other than the proceeds of any Designated Equity Contribution), to the extent that such net cash and Cash Equivalent proceeds are Not Otherwise Applied; provided that, under Section 7.03(k)(ii), (i) the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to (including A) if such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations, the Junior Lien Intercreditor Agreement as a “Senior Representative” (as defined in the Junior Lien Intercreditor Agreement), in the event that a Junior Lien Intercreditor Agreement is in effect at such time, and a First Lien Intercreditor Agreement and (B) if such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens on the Collateral securing the Obligations, the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (as defined in the Junior Lien Intercreditor Agreement), (ii) Liens securing such Indebtedness shall not attach to any assets or property of any Borrower or Subsidiary other than the Collateral, (iii) in the case of such Indebtedness secured on a pari passu basis with the Obligations, such Indebtedness shall have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities (without giving effect to any prior payments that would otherwise modify such Weighted Average Life to Maturity), (iv) in the case of such Indebtedness secured on a pari passu basis with the Obligations, such Indebtedness shall have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred and (v) with respect to any such Indebtedness in the form of syndicated term loans that is secured on a pari passu basis with the Obligations, such Indebtedness shall be subject to the MFN Protection as if such Indebtedness were an Incremental Term Loan;
(l) Indebtedness of any Borrower or Subsidiary Guarantor, in an aggregate principal amount at any time outstanding not to exceed an amount equal the amount of Cash Flow Available for Distribution determined on the date of incurrence to the extent Not Otherwise Applied; provided the Restricted Payment Conditions are satisfied; provided further that (i) the representative of the holders of each such Indebtedness becomes party, in the event that it is not already a party, to (A) if such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations, the Junior Lien Intercreditor Agreement as a “Senior Representative” (as defined in the Junior Lien Intercreditor Agreement), in the event that a Junior Lien Intercreditor Agreement is in effect at such time, and a First Lien Intercreditor Agreement and (B) if such Indebtedness is secured by the Collateral on a second priority (or other junior priority) basis to the Liens on the Collateral securing the Obligations, the Junior Lien Intercreditor Agreement as a “Second Priority Representative” (as defined in the Junior Lien Intercreditor Agreement), (ii) Liens securing such Indebtedness shall not attach to any assets or property of any Borrower or Subsidiary other than the Collateral, (iii) in the case of such Indebtedness secured on a pari passu basis with the Obligations, such Indebtedness shall have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities (without giving effect to any prior payments that would otherwise modify such Weighted Average Life to Maturity), (iv) in the case of such Indebtedness secured on a pari passu basis with the Obligations, such Indebtedness shall have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred and (v) with respect to any such Indebtedness in the form of syndicated term loans that is secured on a pari passu basis with the Obligations, such Indebtedness shall be subject to the MFN Protection as if such Indebtedness were an Incremental Term Loan;
(m) Indebtedness consisting of the financing of insurance premiums;
(n) Indebtedness incurred by any Borrower or Subsidiary Guarantor in respect of letters of credit, bank guarantees, bankers’ acceptances or similar instruments issued or created in the ordinary course of business; provided that any reimbursement obligations in respect thereof are reimbursed within thirty (30) days following the incurrence thereof;
(o) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by any Borrower or Subsidiary Guarantor or obligations in respect of letters of credit or credit, bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personrelated thereto, in each case in the ordinary course of business or consistent with past practice or industry practicespractice;
(ep) Indebtedness of any Borrower or Subsidiary Guarantor in respect of one or more series of senior secured loans or notes (whether issued in a public offering, under Rule 144A of the Borrower Securities Act or in another private placement or otherwise) (and including any bridge financings in lieu of such notes), junior secured or unsecured “mezzanine” loans or notes or senior unsecured or subordinated loans or notes, in each case, pursuant to an indenture, interim agreement, loan agreement, note purchase agreement or otherwise and any extensions, renewals, refinancings and replacements thereof, including in the case of any such notes, any Registered Equivalent Notes (the “Incremental Equivalent Debt”); provided that (i)(x) if the proceeds of such Indebtedness are being used to finance an acquisition, Investment, or irrevocable repayment, repurchase or redemption, no Event of Default under Sections 8.01(a) or (f) with respect to any Subsidiary Borrower shall have occurred and be continuing or would exist after giving effect to such Indebtedness, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Indebtedness, (ii) any such Incremental Equivalent Debt that is secured shall not be secured by any property or assets of any Borrower or Subsidiary Guarantor other than the Collateral, (iii) in the case of Incremental Equivalent Debt secured on a pari passu basis with the Facilities (“Incremental Equivalent First Lien Debt”), such Incremental Equivalent First Lien Debt shall have a Weighted Average Life to Maturity not shorter than the longest remaining Weighted Average Life to Maturity of the Facilities (without giving effect to any prior payments that would otherwise modify such Weighted Average Life to Maturity), and, in the case of Incremental Equivalent Debt that is secured on a junior lien basis with the Facilities or is unsecured (“Incremental Equivalent Junior Lien Debt”), such Incremental Equivalent Junior Lien Debt shall not be subject to scheduled amortization prior to the Borrower Latest Maturity Date at the time such Indebtedness is incurred; and, no Incremental Equivalent Debt shall be subject to mandatory redemption, repurchase or any other Subsidiaryprepayment provisions (except customary asset sale, equity sweep, event of loss, change of control or event of default and similar provisions and, in the case of loans, excess cash flow sweeps) that could result in redemption, repurchase or prepayment prior to the Latest Maturity Date at the time such Indebtedness is incurred; providedprovided that the foregoing requirements of this clause (iii) shall not apply to the extent such Indebtedness constitutes a customary bridge facility, that so long as the long-term Indebtedness owed by any Loan Party into which such customary bridge facility is to any Subsidiary be converted or exchanged satisfies the requirements of this clause (iii) and such conversion or exchange is subject only to conditions customary for similar conversions or exchange, (iv) in the case of Incremental Equivalent First Lien Debt, such Incremental Equivalent First Lien Debt shall have a maturity date that is after the Latest Maturity Date at the time such Indebtedness is incurred, and in the case of Incremental Equivalent Junior Lien Debt, such Incremental Equivalent Junior Lien Debt shall have a maturity date that is at least ninety-one (91) days after the Latest Maturity Date at the time such Indebtedness is incurred; provided that the foregoing requirements of this clause (iv) shall not apply to the extent such Indebtedness constitutes a Guarantor customary bridge facility, so long as the long-term Indebtedness into which such customary bridge facility is to be converted or exchanged satisfies the requirements of this clause (iv) and such conversion or exchange is subject only to conditions customary for similar conversions or exchanges, (v) in the case of Incremental Equivalent First Lien Debt in the form of syndicated term loans, such Incremental Equivalent First Lien Debt shall be subject to the MFN Protection as if such Indebtedness were an Incremental Term Loan, (vi) the aggregate outstanding principal amount of all Incremental Equivalent Debt incurred pursuant to in accordance with this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection 7.03(p), together with the cash managementaggregate principal amount of all Incremental Commitments and Incremental Term Loans shall not exceed the Incremental Availability Amount, tax and accounting operations (vii) the incurrence of the Borrower and the Subsidiaries) any Incremental Equivalent Debt shall be subordinated in right of payment compliance with Regulation T, U and X promulgated by the FRB, (viii) the security agreements, if applicable, relating to such Indebtedness are substantially the Loan Obligations under this Agreement on terms same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (ix) such Indebtedness is not guaranteed other than by the Loan Parties, (x) if such Incremental Equivalent Debt is secured, the Other Debt Representative acting on behalf of the holders of such Indebtedness shall have become party to the First Lien Intercreditor Agreement and/or Junior Lien Intercreditor Agreement, as applicable, and (xi) subject to clauses (iii), (iv) and (v) above, the amortization, pricing, rate floors, discounts, fees, premiums and optional prepayment and redemption provisions applicable to such Incremental Equivalent Debt shall be determined by the Borrower Representative and the holders of such Incremental Equivalent Debt;
(fq) Indebtedness in supported by a letter of credit with respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar to which any Borrower or Subsidiary Guarantor has any reimbursement obligations, in each case provided in the ordinary course so long as such reimbursement obligations constitute Indebtedness permitted pursuant to any other clause of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesthis Section 7.03;
(gr) Credit Agreement Refinancing Indebtedness; and
(s) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (r) above. Notwithstanding the foregoing, no Borrower shall permit any of its Subsidiaries (other than a Loan Party or Excluded Subsidiary pursuant to clause (a) or (c) of the definition thereof) to, directly or indirectly, create, incur, assume, or suffer to exist any Indebtedness; provided, that with respect to any such Indebtedness arising from of an Immaterial Subsidiary, such Indebtedness shall only be permitted if such Indebtedness is intended to promptly be transferred (by operation of law or otherwise) to a Loan Party or an Excluded Subsidiary pursuant to clause (a) of the honoring by a bank or other financial institution definition thereof. For purposes of a checkdetermining compliance with this Section 7.03, draft or similar instrument drawn against insufficient funds in the ordinary course event that an item of business or other cash management servicesIndebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (s) above, the Borrower Representative shall, in each case incurred its sole discretion, classify or later divide, classify or reclassify all or a portion of such item of Indebtedness or any portion thereof in a manner that complies with this Section 7.03 and will only be required to include the ordinary course amount and type of business;such Indebtedness in one or more of the above clauses.
Appears in 2 contracts
Sources: Credit Agreement (GIC Private LTD), Credit Agreement (Blackstone Holdings III L.P.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 2,000,000 shall be set forth in on Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness owed by any Loan Party to of any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment Subsidiary Loan Party owing to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;Parties shall be subject to
Appears in 2 contracts
Sources: Incremental Assumption Agreement (PlayAGS, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness existing on the Closing Date (other than as described in Section 6.01(b) below) existing any Indebtedness of Parent or committed on the Effective Date (provided, any Subsidiary owed to Parent or any Subsidiary); provided that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 2,000,000 individually or $10,000,000 in the aggregate shall be permitted under this clause (a)(i) only if such Indebtedness is set forth in on Schedule 6.01) 6.01 and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause permitted by the foregoing subclause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(ei);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary pursuant (if any) deemed to Hedging exist with respect to Swap Agreements not entered into for non-speculative purposespurposes and under Cash Management Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Parent or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided, that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower Parent owed to any Subsidiary and of any Subsidiary owed to the Borrower Parent or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower Parent and the Subsidiaries, (i) any Indebtedness owed by a Loan Party to a Subsidiary that is not a Loan Party shall be subordinated in right of payment evidenced by (x) the Global Intercompany Note or (y) another promissory note containing substantially similar subordination provisions and (ii) any Indebtedness owed by a Subsidiary that is not a Loan Party to a Loan Party may be evidenced by the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentGlobal Intercompany Note;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case outstanding on the Closing Date or otherwise provided in the ordinary course of business (whether or not consistent with past practice or industry practices) of Parent and the Subsidiaries, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred services in the ordinary course of business;
(A) Indebtedness of any Loan Party and Acquired Indebtedness of Parent or any Subsidiary; provided that (i) no Event of Default shall have occurred or be continuing or would result from the incurrence or existence of such additional Indebtedness or from the application of proceeds thereof, (ii) the Total Net Leverage Ratio shall not exceed 5.00:1.00 calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period, (iii) other than in the case of Acquired Indebtedness, the final maturity date of such Indebtedness shall be no earlier than six months following the then Latest Maturity Date (other than customary offers to repurchase upon a change of control, asset sale or event of loss (so long as, in the case of a change of control offer to purchase provision, a change of control would not be triggered thereunder unless a Change of Control is also triggered hereunder, and in the case of an asset sale or event of loss offer to purchase provision, the net proceeds of any asset sale are permitted to be applied to the prepayment of the Loans first or, in the case of Indebtedness secured by Other First Liens, on a not less than ratable basis than such Indebtedness) and customary acceleration rights after an event of default), (iv) other than in the case of Acquired Indebtedness, the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term B Loans and (v) other than in the case of Acquired Indebtedness, the covenants, events of default, guarantees and other terms of such Indebtedness (other than pricing and redemption premiums), taken as a whole, shall not be more restrictive to Parent and the Subsidiaries than those set forth in this Agreement; provided that a certificate of the Chief Financial Officer of Parent delivered to the Administrative Agent in good faith at least three Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement in this subclause (v) shall be conclusive evidence that such terms and conditions satisfy the requirement in this subclause (v) and (B) Permitted Refinancing Indebtedness in respect of Indebtedness permitted by the foregoing clause (A);
(i) mortgage financings and other purchase money Indebtedness incurred by Parent or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement and Capital Lease Obligations of Parent or any Subsidiary, in each case, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) the aggregate principal amount of such Indebtedness at any time outstanding does not exceed the greater of (X) $75,000,000 and (Y) at the time of any incurrence under this paragraph (i), 37.5% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(j) other Indebtedness of Parent or any Subsidiary in an aggregate principal amount at any time outstanding that does not exceed the greater of (X) $100,000,000 and (Y) at the time of any incurrence under this paragraph (j), 50% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(k) Guarantees (i) by any Loan Party of any Indebtedness of any other Loan Party permitted to be incurred under this Agreement, (ii) by any Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Loan Party to the extent such Guarantees are permitted by Section 6.04(b)(iii), and (iii) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party; provided, that Guarantees by any Loan Party under this paragraph (k) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be subordinated to the Obligations to at least the same extent such other Indebtedness is so subordinated;
(l) Indebtedness arising from agreements of Parent or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price, earnouts or similar obligations, in each case, incurred or assumed in connection with any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, that in respect of the disposition of any business, assets or a Subsidiary, such Indebtedness shall not exceed the proceeds of such disposition;
(m) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(n) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(o) Indebtedness of Subsidiaries that are not Loan Parties in an aggregate amount not to exceed at any time outstanding the greater of (X) $40,000,000 and (Y) at the time of any incurrence under this paragraph (o), 20% of EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(p) unsecured Indebtedness constituting obligations of Parent or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(i) secured Indebtedness of Subsidiary Loan Parties under local lines of credit in the ordinary course of business and consistent with past practices and (ii) Indebtedness of Parent and its Subsidiaries incurred in the ordinary course of business under overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services), in each case, extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by one or more of the Lenders or L/C Issuers or their Affiliates and (in each case) established for Parent’s and the Subsidiaries’ ordinary course of operations;
(r) (i) Specified Prepayment Debt the Net Proceeds of which are applied solely to the prepayment of Loans in accordance with Section 2.12(b) and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness consisting of Indebtedness issued by Parent or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Parent permitted by Section 6.06;
(t) Indebtedness consisting of obligations of Parent or any Subsidiary to any of their employees under deferred compensation or other similar arrangements incurred by such person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder or in the ordinary course of business;
(u) Indebtedness of Parent or any Subsidiary to any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self insurance arrangements) of Parent and the Subsidiaries;
(i) Incremental Equivalent Debt in an aggregate principal amount at any time outstanding not to exceed, together with the aggregate amount of Incremental Commitments made after the Closing Date, the Incremental Amount and (ii) Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness incurred pursuant to subclause (i);
(w) Indebtedness of joint ventures and/or, without duplication, Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures, of Parent or any Subsidiary not in excess, at any one time outstanding, of the greater of (X) $100,000,000 and (Y) at the time of any incurrence pursuant to this paragraph (w), 50% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(x) Settlement Indebtedness;
(y) Customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(z) all premium (if any, including tender premiums), expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (y) above. For purposes of determining compliance with this Section 6.01, 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 on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred after the Closing Date, on the date that such Indebtedness was incurred; 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 principal amount of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing. For purposes of the foregoing, with respect to revolving Indebtedness, Parent may elect to treat the full committed amount to be incurred at the date the commitment becomes effective (or on the Closing Date if such effective date was prior to the Closing Date).
Appears in 2 contracts
Sources: Credit Agreement (EVERTEC, Inc.), Credit Agreement (EVERTEC, Inc.)
Indebtedness. IncurCreate, createincur, assume suffer or permit to exist exist, or assume or guarantee or become or remain liable with respect to any Indebtedness, exceptabsolute, contingent, or otherwise, except the following:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required Lenders and the Agents pursuant to Section 6.01(e)hereto;
(b) Indebtedness created hereunder (including pursuant to secured by Liens permitted by Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness7.2 hereof;
(c) Purchase money Indebtedness (including the amount of any Capital Lease Obligations required to be capitalized and included as a liability on the consolidated balance sheet of the Borrower or any Subsidiary pursuant Borrowers and their Subsidiaries) incurred to Hedging Agreements entered into for non-speculative purposesfinance Capital Expenditures (to the extent otherwise permitted hereunder);
(d) Indebtedness owed to The Term Loan Debt, with no renewals, extensions or increases of any thereof being permitted (including obligations other than “payments-in-kind” of accrued and unpaid interest), unless the same has been approved in respect writing by the Administrative Agent and the Required Lenders or the same is expressly permitted under the terms of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesIntercreditor Agreement;
(e) Other liabilities or Indebtedness existing on the date of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement and set forth on terms reasonably satisfactory to the Administrative AgentSchedule 5.16 attached hereto;
(f) Indebtedness in respect Current accounts payable and unsecured current liabilities (including current accrued expenses), not the result of performance bondsborrowings, bid bondsto vendors, appeal bondssuppliers, surety bonds landlords, lessors and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management persons providing services, in each case incurred for expenditures on ordinary trade terms for goods and services normally required by the applicable Borrower or any of its Subsidiaries in the ordinary course of business;
(g) Indebtedness of any Guarantor of the US Obligations to the US Borrower or to any other Guarantor of the US Obligations, or the Indebtedness of the US Borrower to any Guarantor of the US Obligations, or Indebtedness of any Guarantor of the Canadian Obligations to the Canadian Borrower or to any other Guarantor of the Canadian Obligations, or the Indebtedness of the Canadian Borrower to any Guarantor of the Canadian Obligations, provided that none of the foregoing Indebtedness may be cancelled, compromised or otherwise discounted in any respect without the written consent of the Required Lenders;
(h) Current and deferred taxes and other assessments and governmental charges (to the extent permitted by Section 7.2(e) hereof);
(i) Customary and prudent Hedging Obligations entered into in the ordinary course of business with any Agent, any Lender or any of their respective Affiliates for the sole purpose of protecting the applicable Borrower and its Subsidiaries against fluctuations in interest rates, currency exchange rates and similar risks, so long as such Hedging Obligations are not speculative in nature and are incurred in the normal course of business and consistent with industry practices;
(j) Refinancing Indebtedness, to the extent the same relates to any Indebtedness permitted by Sections 7.1(c) and 7.1(e) hereof;
(k) Contingent Liabilities permitted pursuant to Section 7.3;
(l) Indebtedness arising under any performance or surety bond entered in the ordinary course of business;
(m) Unsecured Indebtedness assumed, acquired or incurred pursuant to any acquisition permitted under Section 7.4(e)(7), provided, that (1) all such Indebtedness constitutes Subordinated Indebtedness, and (2) the aggregate principal amount of all such Indebtedness assumed, acquired or incurred, together with the cash purchase price paid, in connection with all such acquisitions permitted under Section 7.4(e)(9) does not exceed in the aggregate during the period from the Closing Date through the Revolving Credit Termination Date the applicable aggregate consideration limits set forth in Section 7.4(e)(9);
(n) Indebtedness incurred to finance the purchase or maintenance of publicly-tradable securities owned by any Credit Party, so long as (1) such Indebtedness is secured by all such securities, (2) such Indebtedness does not exceed $500,000 in the aggregate at any one time outstanding, and (3) Aggregate Availability is $15,000,000 or greater at all times for the 90-day period prior to such purchase or acquisition and immediately after giving effect to the applicable down payment for such securities then being acquired; and
(o) Other Indebtedness in an aggregate amount not to exceed at any one time outstanding the difference between $3,000,000 and the principal amount of Indebtedness then outstanding and permitted under Section 7.1(n). The Agents, the Lenders and each Credit Party agree that, notwithstanding anything contained in Section 7.1(g) or in any other provision contained in this Agreement which may appear to be to the contrary, the payment of any and all Indebtedness permitted by Sections 7.1(g) hereof, including without limitation, all Indebtedness now or hereafter outstanding and owing by any Credit Party to another Credit Party under the Contribution Agreement (together with any and all Liens from time to time securing the same as permitted by Section 7.2(i) hereof), is hereby made and at all times hereafter shall be inferior and subordinate in all respects to the Obligations from time to time owing to any Agent or any Lender pursuant hereto and to any Lien against any Collateral from time to time now or hereafter securing any of such Obligations pursuant to the terms hereof and the Security Documents. Additionally, the Agents, the Lenders and each Credit Party agree that, notwithstanding anything contained in any provision of this Agreement, any and all contractual, statutory or constitutional Liens which may now or hereafter held by any Borrower against any Property of any of such Borrower’s Subsidiaries as a result of any intercompany lease or sublease by such Borrower to any of its Subsidiaries of any real Property owned or leased by such Borrower are, and at all times hereafter shall be, inferior and subordinate in all respects to any Lien now or hereafter held by the Applicable Agent, for the ratable benefit of the applicable Lenders, against any Collateral as security for any of the Obligations pursuant to the terms hereof and the Security Documents. Each of the Credit Parties agrees to execute and deliver on its own behalf, and to cause to be executed and delivered by and on behalf of any of its Subsidiaries, any and all subordination agreements, in form and content reasonably acceptable to the Administrative Agent, which the Administrative Agent may hereafter require to further evidence the subordination of the payment of the Indebtedness permitted by Section 7.1(g) above, the Liens permitted by Section 7.2(i) and any such contractual, statutory or constitutional landlord’s Liens held by any Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Animal Health International, Inc.), Credit Agreement (Animal Health International, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(bi) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred (ii) other Indebtedness existing on the Closing Date that is listed on Schedule 6.01;
(b) intercompany Indebtedness of Holdings and the Restricted Subsidiaries to Refinance the extent permitted by Section 6.04(b); provided that such Indebtednessintercompany Indebtedness shall be subordinated to the Obligations;
(c) Indebtedness incurred by Holdings or any of the Borrower Restricted Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price, earnouts or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of Holdings or any such Restricted Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposessuch agreements, in connection with Permitted Acquisitions or permitted dispositions of any business or assets of Holdings or any of the Restricted Subsidiaries;
(d) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety, statutory, appeal or similar obligations incurred in the ordinary course of business;
(e) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts;
(f) guaranties in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Holdings and the Restricted Subsidiaries;
(g) Indebtedness under the Revolving Credit Agreement and any Permitted Refinancing Indebtedness thereof; provided that the aggregate principal amount of Indebtedness permitted under this Section 6.01(g) shall not exceed $300,000,000 (plus, in the case of any such Permitted Refinancing Indebtedness, any fees, commissions and expenses, unpaid accrued interest and premium thereon and underwriting discounts and defeasance costs related to the incurrence thereof) at any time outstanding;
(h) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Holdings or any Restricted Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(ei) Indebtedness of Holdings or the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness Restricted Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees similar obligations and similar obligationstrade-related letters of credit, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business and any extension, renewal or consistent with past practice or industry practicesrefinancing thereof to the extent that the amount of refinancing Indebtedness is not greater than the amount of Indebtedness being refinanced;
(gj) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business business; provided that such Indebtedness is extinguished within two Business Days of its incurrence;
(k) Indebtedness with respect to Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by any Restricted Subsidiary prior to or within 270 days after the acquisition or improvement of the respective asset (whether through the direct purchase of such asset or the Equity Interest of any person owning such asset) permitted under this Agreement in order to finance such acquisition or improvement (including any Indebtedness acquired in connection with a Permitted Acquisition); provided, any such Indebtedness (i) incurred by Restricted Subsidiaries that are not Loan Parties shall not exceed $10,000,000 in the aggregate at any time outstanding, (ii) shall be secured only by the assets acquired or improved in connection with the incurrence of such Indebtedness, and (iii) shall constitute not less than 75% of the aggregate consideration paid with respect to such asset, and any Indebtedness that Refinanced such Indebtedness pursuant to the definition of Permitted Refinancing Indebtedness (disregarding clause (v) thereof), in an aggregate principal amount which, when aggregated with the principal amount of all other cash management servicesIndebtedness then outstanding that was incurred pursuant to this clause (k), is not in excess of $50,000,000 outstanding at any time;
(l) Indebtedness of any Restricted Subsidiary supported by a Letter of Credit in a principal amount not in excess of the stated amount of such Letter of Credit;
(m) after the Exit Facility Conversion Date, (i) Indebtedness of a Restricted Subsidiary of Holdings acquired after the Closing Date and Indebtedness of a person merged or consolidated with or into a Restricted Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and (ii) any Indebtedness that Refinanced such Indebtedness pursuant to the definition of Permitted Refinancing Indebtedness (disregarding clause (v) thereof); provided that (A) the aggregate principal amount of all Indebtedness under this clause (m) shall not at any time outstanding exceed $75,000,000 (plus, in the case of any such Permitted Refinancing Indebtedness, any fees, commissions and expenses, unpaid accrued interest and premium thereon and underwriting discounts and defeasance costs related to the incurrence thereof) and (B) at the time of such acquisition and at the time of the incurrence or assumption of such Indebtedness by a Restricted Subsidiary, on a pro forma basis after giving effect thereto, no Default shall have occurred and be continuing and the Leverage Ratio as of such date shall be no greater than the Leverage Ratio as of the Closing Date;
(n) after the Exit Facility Conversion Date, Indebtedness of Restricted Subsidiaries of Holdings that are not Loan Parties in an aggregate amount at any time outstanding not to exceed $50,000,000;
(o) after the Exit Facility Conversion Date, Permitted Subordinated Indebtedness and other junior Indebtedness in an aggregate principal amount not greater than $100,000,000 at any time outstanding; provided that, (i) both before and after giving effect to the incurrence of any such Indebtedness, on a pro forma basis, no Default shall have occurred and be continuing and the Leverage Ratio as of such date shall be no greater than the Leverage Ratio as of the Closing Date;
(p) [Intentionally Omitted];
(q) all premiums (if any), interest (including post-petition interest), fees, expenses, indemnities, charges and additional or contingent interest on obligations described in clauses (a) through (p) above;
(r) [Intentionally Omitted];
(s) Guarantees of obligations of third parties to the extent treated as Investments in such third parties (in an amount equal to the aggregate amount of the obligations so Guaranteed) and permitted by Section 6.04;
(t) Any Refinancing Facility or Refinancing Notes of a Loan Party incurred in accordance with Section 2.23;
(u) Indebtedness consisting of Indebtedness issued by any Loan Party to future, current or former officers, managers, directors, consultants and employees of Holdings, its subsidiaries or its direct or indirect parent companies, their respective estates, spouses or former spouses, in each case incurred to finance the purchase or redemption of Equity Interests of Holdings or any direct or indirect parent company of Holdings to the extent described in Section 6.06(a)(i); provided that the ordinary course terms of businessany such Indebtedness with a principal amount in excess of $2,000,000 shall be approved by the board of directors of Holdings;
(v) Indebtedness with respect to Hedging Agreements permitted under Section 6.04(h); and
(w) Indebtedness in respect of the Prepetition LC Facility (including Indebtedness constituting reimbursement obligations thereunder) with respect to letters of credit outstanding thereunder as of the Exit Facility Conversion Date, in an aggregate amount not to exceed $27,000,000.
Appears in 2 contracts
Sources: Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 2,000,000 shall be set forth in on Schedule 6.016.01 to the Original Credit Agreement) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Loan Party shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the global intercompany note substantially in the form of Exhibit J to the Original Credit Agreement or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests, where such acquisition, merger or consolidation is not prohibited by this Agreement (including a Permitted Business Acquisition); provided, that, (x) in the case of any such Indebtedness secured by Liens on Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the net cash proceeds of such Indebtedness incurred on such date against the applicable amount of Consolidated Debt for purposes of such calculation at such time), and any related transactions is (I) not greater than 4.25 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto and (y) in the case of any other such Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the net cash proceeds of such Indebtedness incurred on such date against the applicable amount of Consolidated Debt for purposes of such calculation at such time), and any related transactions is (I) not greater than 4.75 to 1.00 or (II) no greater than the Total Net Leverage Ratio in effect immediately prior thereto; provided that (1) the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation (except for any seller note or other seller financing) shall be subject to the last paragraph of this Section 6.01 and (2) the aggregate outstanding principal amount of Indebtedness permitted under this clause (h)(i) incurred by a Subsidiary other than a Subsidiary Loan Party in contemplation of such acquisition, merger or consolidation, together with the aggregate principal amount of Indebtedness of a Subsidiary other than a Subsidiary Loan Party then outstanding pursuant to Section 6.01(s)(i), shall not exceed the greater of $30,000,000 and 4.25% of Consolidated Total Assets as at the end of the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed (A) the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period plus (B) any additional amounts, so long as immediately after giving effect to the incurrence of such additional amounts under this clause (B) and the use of proceeds thereof, the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 4.75 to 1.00, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capitalized Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(k) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(l) [Reserved];
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) other Indebtedness or Disqualified Stock of the Borrower or any Subsidiaries in an aggregate outstanding principal amount or liquidation preference not greater than 100.0% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or any Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries and other than Permitted Cure Securities), to the extent that such net cash proceeds do not increase the Cumulative Credit and do not constitute Excluded Contributions;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) Indebtedness secured by Liens on the Collateral ranking pari passu with the Liens on the Collateral securing the Term B Loans so long as (x) at the time of incurrence thereof, no Default or Event of Default shall have occurred and be continuing and (y) immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 4.25 to 1.00; provided that, (1) the net cash proceeds of Indebtedness incurred under this clause (r)(i) at such time shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Net First Lien Leverage Ratio at such time and (2) the incurrence of any Indebtedness pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness so long as (x) at the time of incurrence thereof, no Default or Event of Default shall have occurred and be continuing, (y) immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 4.75 to 1.00 and (z) the aggregate principal amount of Indebtedness permitted under this clause (s)(i) incurred by a Subsidiary other than a Subsidiary Loan Party, together with the aggregate principal amount of Indebtedness of a Subsidiary other than a Subsidiary Loan Party then outstanding pursuant to Section 6.01(h)(i) incurred in contemplation of an acquisition, merger or consolidation, shall not exceed the greater of $30,000,000 and 4.25% of Consolidated Total Assets as at the end of the then most recently ended Test Period; provided that, (1) the net cash proceeds of Indebtedness incurred under this clause (s)(i) at such time shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Total Net Leverage Ratio at such time and (2) the incurrence of any Indebtedness pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements.
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Receivables Financings;
(x) obligations in respect of Cash Management Agreements;
(y) Refinancing Notes and any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time; provided, that (1) there shall be no obligor in respect of any such Indebtedness that is not a Loan Party and (2) the incurrence of any Indebtedness pursuant to this clause (z)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) Guarantees of Indebtedness under ordinary course customer financing lines or credit;
(bb) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisitions or any other Investment permitted hereunder;
(ee) Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower and its Subsidiaries;
(ff) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit; and
(gg) all premium (if any, including tender premiums) expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) throu
Appears in 2 contracts
Sources: Incremental Assumption and Amendment Agreement (PlayAGS, Inc.), Incremental Assumption and Amendment Agreement (PlayAGS, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower BGI and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower BGI or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower BGI or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower BGI to any Subsidiary and of any Subsidiary to the Borrower BGI or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower BGI and the its Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
Appears in 2 contracts
Sources: Amendment No. 2 (Barnes Group Inc), Credit Agreement (Barnes Group Inc)
Indebtedness. IncurCreate, createincur, assume assume, suffer to exist, guarantee, or permit otherwise become or remain, directly or indirectly, liable with respect to exist any Indebtedness, except:
(a) (x) Indebtedness (evidenced by this Agreement and the other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);Documents,
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 outstanding on the Closing Date and Section 2.23) and under set forth on the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;Reporting Addendum,
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesintercompany loans and advances permitted by Section 7.11;
(d) Indebtedness owed to (including obligations Guarantees) in respect of (i) performance, surety, bid, appeal or similar bonds, completion guarantees or similar instruments, including letters of credit or bank guarantees or similar instruments and bankers acceptances (not incurred for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course purpose of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligationsborrowing money), in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations (ii) Hedging Agreements entered into in the ordinary course of business as a risk management strategy and (iii) agreements providing for indemnification, adjustment of purchase price or consistent similar obligations, or from guarantees or letters of credit, surety bonds or performance bonds securing any obligations pursuant to such agreement, incurred in connection with past practice the disposition of any business, assets or industry practicesSubsidiary of Borrower;
(e) Capital Lease Obligations and Indebtedness created, incurred or assumed in respect of the purchase, improvement, repair or construction of property, provided that such Indebtedness is created, incurred or assumed within 180 days after the earlier of (x) the placement in service of such property or (y) the final payment on such property, and provided that the aggregate amount of the Indebtedness and created, incurred or assumed pursuant to this paragraph (e) at any time outstanding shall not exceed $500,000;
(f) Indebtedness incurred to pay premiums for insurance policies maintained by Borrower or any of its Subsidiaries in the ordinary course of business not exceeding in aggregate the amount of such unpaid premiums;
(g) Indebtedness arising from of any Person acquired by Borrower or any of its Subsidiaries in an acquisition permitted by Section 7.11 (“Acquisition Indebtedness”) and assumed by Borrower or such Subsidiary pursuant to such acquisition, provided that (i) such Indebtedness was not incurred in contemplation of such acquisition, and (ii) such Indebtedness in respect thereof shall not be secured by any assets other than some or all of the honoring assets securing the acquired Indebtedness prior to such acquisition;
(h) refinancings, renewals, or extensions of Indebtedness permitted under clauses (b), (e) and (g) of this Section 7.1 (and continuance or renewal of any Permitted Liens associated therewith) so long as: (i) the terms and conditions of such refinancings, renewals, or extensions do not, in the Lender’s reasonable judgment, materially impair the prospects of repayment of the Obligations by the Credit Parties or materially impair Borrower’s or any Credit Party’s creditworthiness, (ii) such refinancings, renewals, or extensions do not result in an increase in the principal amount of, or interest rate with respect to, the Indebtedness so refinanced, renewed, or extended or add one or more Credit Parties as liable with respect thereto if such additional Credit Parties were not liable with respect to the original Indebtedness, (iii) such refinancings, renewals, or extensions do not result in a bank shortening of the average weighted maturity of the Indebtedness so refinanced, renewed, or extended, nor are they on terms or conditions, that, taken as a whole, are materially more burdensome or restrictive to the applicable Credit Party, (iv) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Obligations, then the terms and conditions of the refinancing, renewal, or extension Indebtedness must include subordination terms and conditions that are at least as favorable to the Lender as those that were applicable to the refinanced, renewed, or extended Indebtedness, and (v) the Indebtedness that is refinanced, renewed, or extended is not recourse to any Person that is liable on account of the Obligations other than those Persons which were obligated with respect to the Indebtedness that was refinanced, renewed, or extended;
(i) Guarantees with respect to bonds issued to support workers’ compensation, unemployment or other financial institution of a checkinsurance or self-insurance obligations, draft or and similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesobligations, in each case case, incurred by Borrower or any of its Subsidiaries in the ordinary course of business;
(j) Indebtedness in the form of any earnout or other similar contingent payment obligation incurred in connection with an acquisition permitted hereunder;
(k) Indebtedness arising in the ordinary course of business in respect of netting services, overdraft protections, cash management services and otherwise in connection with deposit accounts;
(l) Guarantees (i) of Indebtedness otherwise permitted to be incurred hereunder or (ii) granted in the ordinary course of business of the obligations of suppliers, customers, franchisees and licensees of Borrower or any of its Subsidiaries;
(m) Indebtedness incurred by Excluded Subsidiaries to fund the origination or purchase of receivables or the purchase of goods to be held for lease, in either case in the ordinary course of business; and
(n) Other Indebtedness of Borrower or any of its Subsidiaries in an aggregate face and/or principal amount at any time outstanding not in excess of $1,000,000.
Appears in 2 contracts
Sources: Loan and Security Agreement (Atlanticus Holdings Corp), Loan and Security Agreement (Atlanticus Holdings Corp)
Indebtedness. IncurCreate, createissue, assume incur, assume, become liable in respect of or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that of any such Indebtedness that is owed Loan Party pursuant to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Document;
(b) Indebtedness created hereunder (including pursuant of the Borrower to Section 2.21, Section 2.22 any Subsidiary and Section 2.23) of any Subsidiary Guarantor to the Borrower or any other Subsidiary and under the of any Subsidiary that is not a Subsidiary Guarantor to any other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessSubsidiary that is not a Subsidiary Guarantor;
(ci) Indebtedness Guarantee Obligations incurred by the Borrower or any Subsidiary Guarantors of obligations of the Borrower or any other Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesGuarantor and (ii) Guarantee Obligations incurred by a Subsidiary that is not a Subsidiary Guarantor of obligations of the Borrower or any other Subsidiary;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without shortening the maturity thereof or increasing the principal amount thereof except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder);
(e) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ worker’s compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentPerson;
(f) Indebtedness of the Borrower and its Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and bonds, completion guarantees guarantees, bankers’ acceptances and similar obligationsobligations and trade-related letters of credit, in each case provided in the ordinary course of business or consistent and not in connection with past practice or industry practicesIndebtedness for money borrowed, including without limitation those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness incurred by Foreign Subsidiaries in an aggregate principal amount outstanding not to exceed $40,000,000 at any one time, and guarantees of such Indebtedness;
(h) Indebtedness assumed in connection with any Permitted Acquisition; provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition, and any refinancings, refundings, renewals or extensions thereof (without shortening the maturity thereof or increasing the principal amount thereof except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder);
(i) Indebtedness (including, without limitation, Financing Lease Obligations) secured by Liens permitted by Section 7.3(f) in an aggregate principal amount not to exceed $6,500,000 at any one time outstanding;
(j) additional Indebtedness of the Borrower or any of its Subsidiaries in the aggregate principal amount outstanding (for the Borrower and all Subsidiaries) not to exceed the greater of $50,000,000 and 50% of Consolidated EBITDA for the period of four full consecutive fiscal quarters of the Borrower most recently ended (determined at the time of incurrence of such Indebtedness);
(k) Swap Agreements entered into in the ordinary course of business for non-speculative purposes;
(l) Indebtedness in respect of netting services, overdraft protection and similar arrangements, including Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business business;
(m) to the extent it constitutes Indebtedness, Indebtedness incurred by the Borrower or other cash management servicesany of its Subsidiaries arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from guaranties or letters of credit, surety bonds or performance bonds securing the performance of the Borrower or any such Subsidiary pursuant to such agreements, in connection with Permitted Acquisitions or Dispositions permitted by Section 7.5;
(n) Indebtedness consisting of (i) the deferred purchase price of Permitted Acquisitions or (ii) earn-outs arising out of Permitted Acquisitions, in each case case, so long as (x) the Total Leverage Ratio (as determined on a pro forma basis giving effect to such Permitted Acquisition and any other transactions in connection therewith, and recomputed as of the last day of the most recently ended fiscal quarter of the Borrower for which financial statements are available) does not exceed 4.00:1.00 or (y) to the extent such Total Leverage Ratio would exceed 4.00:1.00, the aggregate amount of such Indebtedness shall not exceed, for any fiscal year, when taken together with the amount of Acquisition Consideration paid in reliance on Section 7.7(k) during such fiscal year, $100,000,000;
(o) Indebtedness consisting of deferred purchase price or notes issued to officers, directors and employees to purchase equity interests (or options or warrants or similar instruments) of Borrower, Parent or PubCo;
(p) Indebtedness incurred in connection with the financing of insurance premiums in an amount not to exceed the annual premiums in respect thereof at any one time outstanding;
(q) Incremental Equivalent Debt;
(r) Investments in the form of Indebtedness permitted by Section 7.7; and
(s) Guarantee Obligations of Parent in respect of Indebtedness incurred in the ordinary course of business;business by any of its Subsidiaries other than the Borrower and its Subsidiaries.
Appears in 2 contracts
Sources: Second Amendment (RE/MAX Holdings, Inc.), Credit Agreement (RE/MAX Holdings, Inc.)
Indebtedness. IncurCreate, createincur, assume or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on under the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Documents;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 outstanding on the date hereof and Section 2.23) and under the other Loan Documents listed on Schedule 7.03 and any Refinancing Notes incurred refinancings, refundings, renewals or extensions thereof; provided that (i) the terms and conditions of such extensions, renewals or refinancings of such Indebtedness do not, in the Administrative Agent’s reasonable judgment, materially impair the prospects of repayment of the Obligations by the Borrowers or impair any Borrower’s creditworthiness and (ii) such extensions, renewals or refinancings of such Indebtedness do not result in an increase in the principal amount of such Indebtedness so extended, renewed or refinanced or add any Borrower as liable with respect thereto if such Borrower was not liable with respect to Refinance such the original Indebtedness;
(c) Indebtedness of the any Borrower to any Subsidiary and of any Subsidiary to any Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesother Subsidiary;
(d) Guarantees of the Borrowers or any Subsidiary in respect of Indebtedness otherwise permitted hereunder of the Borrowers or any Subsidiary;
(e) obligations (contingent or otherwise) of the Borrowers or any Subsidiary existing or arising under any Swap Contract (including any total rate of return Swap Contract);
(f) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the any Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(fg) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case case, provided in the ordinary course of business or consistent with past practice or industry practicesordinary business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(gh) Unsecured Indebtedness;
(i) Other Letter of Credit Obligations, up to a maximum amount outstanding at any time not greater than $10,000,000;
(j) Indebtedness arising from the occasional honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business and not from an overdraft credit facility granted by the bank or other cash management servicesfinancial institution;
(k) other Secured Indebtedness and any other Indebtedness that is secured by assets not comprising Collateral; and
(l) Trust Preferred Indebtedness and related Trust Preferred Guarantees and Trust Preferred Securities incurred, in each case incurred in the ordinary course executed or issued respectively, as part of business;a Trust Preferred Securities Transaction.
Appears in 2 contracts
Sources: Credit Agreement (KKR Financial Holdings LLC), Credit Agreement (KKR Financial Holdings LLC)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) the Existing Notes, (ii) [reserved] and (iii) other Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary Subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eBorrower);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary and its Relevant Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any SubsidiaryRelevant Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such person, in each case Person in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(e) Indebtedness of the Borrower to or any Relevant Subsidiary and of any Subsidiary owing to the Borrower or any other Subsidiary; providedSubsidiary of the Borrower to the extent permitted by Section 6.04, provided that Indebtedness owed by of any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) Loan Party (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesand Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business, provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Relevant Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Relevant Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger, amalgamation or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement, provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), would not exceed the greater of $125.0 million and 2.0 % of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable, for which financial statements have been delivered pursuant to Section 5.04 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Relevant Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed the greater of $125.0 million and 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by the Borrower or any Relevant Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(k) not in excess of the greater of $100.0 million and 1.5 % of Consolidated Total Assets;
(l) Guarantees (i) by any Loan Party or any other Relevant Subsidiary of any Indebtedness of the Borrower or any other Loan Party expressly permitted to be incurred under this Agreement; provided, that a Relevant Subsidiary that is not a Loan Party shall not be permitted to Guarantee Indebtedness of a Loan Party pursuant to this sub-clause (i) unless such Relevant Subsidiary becomes (and remains) a guarantor hereunder while such Guarantee is outstanding, (ii) by the Borrower or any Relevant Subsidiary of Indebtedness of any Subsidiary that is not a Loan Party to the extent permitted by Section 6.04, (iii) by any Relevant Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party and (iv) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(k) or (p); provided that Guarantees by any Loan Party under this Section 6.01(l) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to be used, for Subordinated Intercompany Debt;
(m) Indebtedness arising from agreements of the Borrower or any Relevant Subsidiary of the Borrower providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(n) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(o) Indebtedness consisting of Permitted Junior Debt;
(p) Indebtedness of Relevant Subsidiaries that are Foreign Subsidiaries (including letters of credit or bank guarantees (other than Revolving Letters of Credit issued pursuant to Section 2.05) for working capital purposes incurred in the ordinary course of businessbusiness on ordinary business terms in an aggregate amount not to exceed the greater of $25.0 million and 0.5% of Consolidated Total Assets outstanding at any time);
(i) Indebtedness incurred and/or assumed in connection with Section 6.04(j) or 6.04(q); provided that the aggregate amount of such Indebtedness outstanding pursuant to this Section 6.01(q) shall not exceed the greater of $150.0 million and 2.5% of Consolidated Total Assets and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; and
(r) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (q) above. For purposes of determining compliance with this Section 6.01, (i) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of Indebtedness permitted in this Section 6.01, the Borrower or a Relevant Subsidiary, as the case may be, in its sole discretion, may classify, at the time of incurrence, such item of Indebtedness (or any portion thereof) in any such category and will only be required to include such Indebtedness (or any portion thereof) in one of the categories of Indebtedness permitted in this Section 6.01; and (ii) at the time of incurrence, the Borrower or a Relevant Subsidiary, as the case may be, in its sole discretion, may divide and classify an item of Indebtedness (or any portion thereof) in more than one of the categories of Indebtedness permitted in this Section 6.01.
Appears in 2 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.12;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided, that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness owed by any Loan Party to of any Subsidiary that is not a Guarantor incurred pursuant Subsidiary Loan Party owing to this the Loan Parties shall be subject to Section 6.01(e6.04(b) and (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations ii) Indebtedness of the Borrower to Holdings or any Subsidiary and Indebtedness of any other Loan Party to Holdings or any Subsidiary that is not a Subsidiary Loan Party (the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided, that (x) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of notification to the Borrower of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger or consolidation, the assumption and incurrence of any Indebtedness and any related transactions, the Borrower shall be in Pro Forma Compliance;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases permitted under Section 6.03, would not exceed the greater of $75.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $75.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Borrower pursuant to (i) the Second Lien Notes in an aggregate principal amount that is not in excess of $600.0 million, (ii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of $300.0 million, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(m) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in paragraph (1) of this Section 6.01, so long as the Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof is subordinated substantially on terms as set forth in the Senior Subordinated Notes Indenture with respect to the Senior Subordinated Notes, and so long as any Liens securing the Guarantee of the Second Lien Notes or any Permitted Refinancing Indebtedness in respect thereof are subject to the Intercreditor Agreement, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Holdings or any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iv) by any Foreign Subsidiary of Indebtedness of another Foreign Subsidiary, and (v) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01 (s) to the extent such Guarantees are permitted by 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as the Guarantee of the Senior Subordinated Notes is under the Senior Subordinated Notes Indenture;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Transactions and any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) Indebtedness consisting of Permitted Additional Debt and Permitted Refinancing Indebtedness in respect thereof so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (ii) the Borrower and its Subsidiaries shall be in Pro Forma Compliance after giving effect to the issuance, incurrence or assumption of such Indebtedness and (iii) in the case of any Permitted Additional Debt that is secured, immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Total Net Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 6.00 to 1.00;
(s) Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed $50.0 million outstanding at any time;
(t) unsecured Indebtedness in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(u) Indebtedness representing deferred compensation to employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness in connection with Permitted Receivables Financings; provided that the proceeds thereof are applied in accordance with Section 2.11(b);
(w) Indebtedness of the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and in the Security Documents (it being understood, however, that for a period of 30 consecutive days during each fiscal year of the Borrower the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed $10.0 million);
(x) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (w) above.
Appears in 2 contracts
Sources: Credit Agreement (Verso Paper Holdings LLC), Credit Agreement (Verso Sartell LLC)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in and listed on Schedule 6.016.01(a) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)hereto;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessTransaction Documents;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Company or any SubsidiarySubsidiary thereof, pursuant to reimbursement or indemnification obligations to such person; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than thirty (30) days following such incurrence;
(d) Indebtedness consisting of royalty payments or royalty obligations under the ▇▇▇▇▇▇▇ Lease or the ▇▇▇▇▇▇▇ Trust Lease, or under any other agreement in each case in respect of the ordinary course acquisition of business or consistent with past practice or industry practicesany After Acquired Property the acquisition of which is approved by the Investor;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, letters of credit and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(gincluding land reclamation and other obligations under Mining Permits and Environmental Permits) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(f) Capital Lease Obligations and purchase money security interest Indebtedness incurred by the Company at the time of and for the purpose of the acquisition or lease of the respective asset in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to this paragraph (f) would not exceed $500,000; and
(g) Guarantees by any Transaction Party of any Indebtedness of the Company or any other Transaction Party expressly permitted to be incurred under this Agreement.
Appears in 2 contracts
Sources: Investment Agreement (Desert Hawk Gold Corp.), Investment Agreement (Desert Hawk Gold Corp.)
Indebtedness. IncurThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to create, incur, assume or permit otherwise become or remain liable with respect to exist any Indebtedness, except:
(a) the Secured Obligations (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that including any such Indebtedness that is owed to Additional Term Loans and any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eAdditional Revolving Loans);
(b) Indebtedness created hereunder of (i) the Borrower to Holdings and/or any Restricted Subsidiary, (ii) of Holdings to the Borrower and/or any Restricted Subsidiary and/or (iii) of any Restricted Subsidiary to Holdings, the Borrower and/or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to the Borrower or any Restricted Subsidiary that is a Loan Party, such Indebtedness shall be permitted as an Investment under Section 6.05; provided, further, that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party incurred in reliance on this clause (b) must be unsecured and expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtednessan Intercompany Note);
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes[reserved];
(d) Indebtedness owed to arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including obligations contingent earn-out obligations) incurred in respect connection with the Transactions, any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock or other Investments, and Indebtedness arising from guaranties, letters of credit or credit, bank guarantees guaranties, surety bonds, performance bonds or similar instruments for securing the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to performance of the Borrower or any Subsidiary, such Restricted Subsidiary pursuant to reimbursement or indemnification obligations to any such person, in each case in the ordinary course of business or consistent with past practice or industry practicesagreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) as a result of or pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any Subsidiary and of any Subsidiary to the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of Banking Services and/or otherwise in connection with Cash management and Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(i) guaranties by the Borrower and/or any other Subsidiary; providedRestricted Subsidiary of the obligations of suppliers, that customers and licensees in the ordinary course of business, (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
services and (fiii) Indebtedness in respect of performance bondsletters of credit, bid bondsbankers’ acceptances, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft guaranties or similar instrument drawn against insufficient funds in the ordinary course of business instruments supporting trade payables, warehouse receipts or other cash management services, in each case incurred similar facilities entered into in the ordinary course of business;
(h) Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.05;
(i) Indebtedness of Holdings, the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date; provided that any such Indebtedness or commitment having an outstanding principal amount in excess of $2,500,000 shall be described on Schedule 6.01;
(j) so long as no Event of Default then exists, Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $12,500,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) so long as no Event of Default then exists, Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $12,500,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with any acquisition or similar Investment; provided that:
(i) no Event of Default then exists;
(ii) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, and
(iii) after giving effect to such Indebtedness on a Pro Forma Basis, either:
(A) the Secured Leverage Ratio does not exceed 7.50:1.00, calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period (assuming for purposes of such calculation that such Indebtedness constitutes Consolidated Secured Debt); or
(B) such Indebtedness is in an aggregate principal amount outstanding not to exceed the greater of $5,000,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Borrower or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.03(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (u), (r), (w), (y), and (z) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (j), (m), (n), (u) and/or (y), such Indebtedness has (A) a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, such Refinancing Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any prepayment thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the outstanding Term Loans at such time,
(iii) the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (other than any Indebtedness of the type described in Section 6.01(m)) (excluding, to the extent applicable, pricing, fees, premiums, rate floors, optional prepayment, redemption terms or subordination terms and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by the Borrower), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenants or any other provisions, taken as a whole, applicable only to periods after the applicable maturity date of the debt then-being refinanced as of such date, (B) any covenant or provision which constitutes a then-current market term for the applicable type of Indebtedness or (C) any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)),
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n), (q) (solely as it relates to the amount of such Indebtedness that may be incurred by Restricted Subsidiaries that are not Loan Parties incurred pursuant to (x) clause (i) therein and (y) the proviso to clause (ii) therein), (r), (u), (w) (solely as it relates to the amount of such Indebtedness that may be incurred by Restricted Subsidiaries that are not Loan Parties incurred pursuant to (x) clause (i) therein and (y) the proviso to clause (ii) therein), (y) and (z) (solely as it relates to the Unrestricted Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amount outstanding in reliance on the relevant clause such that the amount available under the relevant clause shall be reduced by the amount of the applicable Refinancing Indebtedness,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Initial Loans, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Initial Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those (1) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or (2) set forth in any applicable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that any entity that was a guarantor in respect of the relevant refinanced Indebtedness may be the primary obligor in respect of the refinancing Indebtedness, and any entity that was the primary obligor in respect of the relevant refinanced Indebtedness may be a guarantor in respect of the refinancing Indebtedness), (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (1) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (2) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.03(b) (other than Section 6.03(b)(i)), and (D) as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default then exists, and
(vi) in the case of Refinancing Indebtedness constituting Replacement Debt, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any subsidiary of the Borrower other than one or more Loan Parties and (D) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement; it being understood and agreed that any such Refinancing Indebtedness that is pari passu with the Initial Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi);
(q) an additional unlimited amount of Indebtedness of the Borrower and/or any Restricted Subsidiary incurred to finance any acquisition or similar Investment permitted hereunder after the Closing Date so long as:
(i) after giving effect to such acquisition or similar Investment on a Pro Forma Basis (in each case, without “netting” the cash proceeds of the applicable Indebtedness being incurred and, in the case of any revolving credit facility then being incurred or established, assuming a full drawing of such revolving credit facility):
(A) if such Acquisition Ratio Debt constitutes First Lien Debt, the First Lien Leverage Ratio does not exceed 7.50:1.00,
(B) if such Acquisition Ratio Debt constitutes Junior Lien Debt, the Secured Leverage Ratio does not exceed 7.50:1.00; or
(C) if such Indebtedness is secured by a Lien on any asset that does not constitute Collateral or is unsecured, the Total Leverage Ratio does not exceed 8.00:1.00; and
(ii) the aggregate outstanding principal amount of Acquisition Ratio Debt incurred in reliance on this Section 6.01(q) by Restricted Subsidiaries that are not Loan Parties shall not, at any time, exceed an amount equal to the greater of $15,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(iii) if such Acquisition Ratio Debt is issued or incurred by any Loan Party and consists of third party Indebtedness for borrowed money:
(A) the final maturity date of such Indebtedness is no earlier than the Latest Term Loan Maturity Date on the date of the issuance or incurrence thereof,
(B) the Weighted Average Life to Maturity applicable to such Indebtedness is no shorter than the Weighted Average Life to Maturity of the then-existing Term Loans,
(C) if such Indebtedness is secured, it may no
Appears in 2 contracts
Sources: Credit Agreement (Definitive Healthcare Corp.), Credit Agreement (Definitive Healthcare Corp.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (created hereunder and under the other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Documents;
(b) Indebtedness created hereunder (including pursuant to Swap Agreements permitted by Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness6.11;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other similar obligations to the Borrower or any Restricted Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in provided that upon the ordinary course incurrence of business or consistent Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 60 days following such incurrence;
(ed) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; providedSubsidiary (including pursuant to the Intercompany Note), provided that (i) Indebtedness owed by of any Subsidiary that is not a Subsidiary Loan Party to the Loan Parties shall be permitted under Section 6.04 and (ii) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) Subsidiary Loan Party (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory pursuant to the Administrative Agentsubordination terms set forth in the Intercompany Note;
(fe) Indebtedness in respect of performance bondsbids, bid bondstrade contracts (other than for debt for borrowed money), leases (other than Capital Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, surety bonds performance, performance and completion and return of money bonds, government contracts, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business (including letters of credit, bank guarantees or consistent similar instruments in lieu of such items to support the issuance thereof);
(f) Cash Management Obligations (as defined in the First Lien Credit Agreement) and other Indebtedness in respect of netting services, overdraft protection and similar arrangements, in each case, in connection with past practice or industry practicescash management and deposit accounts;
(g) (i) Indebtedness assumed or acquired in connection with Permitted Business Acquisitions, which Indebtedness in each case, exists at the time of such Permitted Business Acquisition and is not created in contemplation of such event, the aggregate principal amount thereof at the time of such acquisition or assumption together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (g) and the Remaining Present Value of leases permitted under Section 6.03 does not exceed the greater of (x) $86.25 million and (y) an amount equal to 11.5% of the consolidated revenues of the Borrower and its Restricted Subsidiaries for the period of four fiscal quarters most recently ended on or prior to the date of determination for which financial statements are available; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(h) Capital Lease Obligations, mortgage financings and purchase money Indebtedness (including any industrial revenue bond, industrial development bond and similar financings) incurred by the Borrower or any Restricted Subsidiary prior to or within 270 days after the acquisition, lease, repair or improvement of the respective asset in order to finance such acquisition, lease, repair or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (g) of this Section 6.01, this paragraph (h) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed the greater of (x) $86.25 million and (y) an amount equal to 11.5% of the consolidated revenues of the Borrower and its Restricted Subsidiaries for the period of four fiscal quarters most recently ended on or prior to the date of determination for which financial statements are available;
(i) Capital Lease Obligations incurred by the Borrower or any Restricted Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(j) First Lien Indebtedness and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(k) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in paragraph (j), (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of any other Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party or (iv) by any Restricted Subsidiary that is not a Loan Party of Holdings and its Subsidiaries to the extent, in the case of clauses (iii) and (iv), such Guarantees are permitted by Section 6.04(b), (j), (m), (o) or (q); provided that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(k) of any other Indebtedness of a person that is subordinated to the Obligations shall be expressly subordinated to the Obligations on terms not materially less favorable to the Lenders as those contained in the subordination of such other Indebtedness to the Obligations;
(l) Indebtedness arising from agreements of the honoring Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets (including Equity Interests of Subsidiaries) of the Borrower or any Subsidiary permitted by Section 6.04 or Section 6.05, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business or assets for the purpose of financing such acquisition;
(m) Indebtedness supported by a letter of credit, under the First Lien Credit Agreement;
(n) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) Permitted Debt Securities and (ii) Permitted Refinancing Indebtedness in respect thereof; provided that, in the case of clause (i), after giving effect to any such incurrence, no Event of Default shall have occurred and be continuing and the Borrower shall be in compliance with the Total Leverage Ratio on a Pro Forma Basis;
(p) other Indebtedness of the Borrower or any Restricted Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the sum of $57.5 million plus the amount by which (A) the greater of (x) $86.25 million and (y) an amount equal to 11.5% of the consolidated revenues of the Borrower and its Restricted Subsidiaries for the period of four fiscal quarters most recently ended on or prior to the date of determination for which financial statements are available exceeds (B) the sum of all Indebtedness outstanding pursuant to paragraphs (h) and (i) of this Section 6.01 plus the Remaining Present Value of leases permitted under Section 6.03;
(q) Indebtedness existing on the Closing Date and set forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(r) letters of credit or bank or guarantees (other financial institution than letters of a checkcredit issued pursuant to the First Lien Credit Agreement) having an aggregate face amount not to exceed $17.25 million outstanding at any time;
(s) Indebtedness incurred by the Borrower and its Restricted Subsidiaries representing (i) deferred compensation to directors, draft or similar instrument drawn against insufficient funds officers, employees, members of management and consultants of such person in the ordinary course of business or (ii) deferred compensation or other cash similar arrangements in connection with the Transactions or any Permitted Business Acquisition;
(t) Indebtedness consisting of promissory notes issued by the Borrower and its Restricted Subsidiaries to current or former directors, officers, employees, members of management servicesor consultants of such person (or their respective estate, heirs, family members, spouse or former spouse) to finance the purchase or redemption of Equity Interests of any Parent Entity permitted by Section 6.05;
(u) Indebtedness in each case incurred respect of letters of credit, bankers’ acceptances supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;; and
(v) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on Indebtedness described in paragraphs (a) through (u) above.
Appears in 2 contracts
Sources: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Indebtedness. IncurNo Loan Party shall, nor shall it permit any of its Subsidiaries or the LS&Co. Trust to, directly or indirectly, create, incur, assume or permit suffer to exist any Indebtedness, except:
(a) Indebtedness owed by the U.S. Borrower or any of its Subsidiaries to the U.S. Borrower or any of its Subsidiaries; provided that (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower a Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant Obligations (in the case of Indebtedness of any U.S. Loan Party) or the Canadian Obligations (in the case of Indebtedness of any Canadian Loan Party) and (y) any Indebtedness owed by a U.S. Loan Party to Section 6.01(e)a Canadian Loan Party shall be subordinated to the Obligations;
(b) Indebtedness created hereunder (including pursuant to Section 2.21of the U.S. Loan Parties issued in a Capital Markets Transaction, Section 2.22 provided such Indebtedness is unsecured and Section 2.23) and under such Indebtedness does not have a stated maturity date or required principal payments earlier than six months after the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessMaturity Date;
(c) Indebtedness Guarantees of the U.S. Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesunder the LS&Co. Trust Agreement; provided that the investment activities of the LS&Co. Trust are in compliance with the Investment Policies;
(d) Indebtedness owed to Guarantees of (including obligations i) the U.S. Loan Parties in respect of letters the obligations of credit or bank guarantees or similar instruments for Loan Parties, (ii) the benefit ofCanadian Loan Parties in respect of the obligations of Canadian Loan Parties and (iii) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Foreign Subsidiaries that are not Loan Parties in respect of the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personof Foreign Subsidiaries that are not Loan Parties, in each case case, arising under or in connection with Banking Services in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(e) Indebtedness of the U.S. Borrower and its Subsidiaries outstanding on the Closing Date and listed on Schedule 6.01 and any Permitted Refinancing Indebtedness in respect thereof; provided that intercompany Indebtedness set forth on Schedule 6.01 may not be refinanced pursuant to Section 6.01(e) with third-party Indebtedness;
(f) Indebtedness of the Loan Parties under the Loan Documents;
(g) Indebtedness of the U.S. Borrower and its Subsidiaries secured by Liens permitted by Section 6.02(c) not to exceed in the aggregate $100,000,000 at any Subsidiary and time outstanding;
(h) Indebtedness of any Subsidiary to the U.S. Borrower or any other Subsidiary; providedSubsidiary in respect of Ordinary Course Swap Agreements;
(i) so long as the Minimum Intercompany Transaction Requirement is met (unless pro forma Availability is not less than the greater of (x) $100.0 million and (y) 15% of the Line Cap, that in which case, the Minimum Intercompany Transaction Requirement need not be met), Indebtedness owed by (in the case of Indebtedness of (A) any U.S. Loan Party to any Subsidiary that is not a Guarantor incurred pursuant U.S. Loan Party or (B) any Canadian Loan Party to any Subsidiary that is not a Loan Party, maturing at least six months after the Maturity Date) of the U.S. Borrower and its Subsidiaries to LSIFCS or any other Affiliate of the U.S. Borrower providing services similar to the services provided by LSIFCS in the ordinary course of business and Indebtedness (in the case of Indebtedness of (A) any U.S. Loan Party to any Subsidiary that is not a U.S. Loan Party or (B) any Canadian Loan Party to any Subsidiary that is not a Loan Party, maturing at least six months after the Maturity Date) of LSIFCS or any other Affiliate of the U.S. Borrower providing services similar to the services provided by LSIFCS to the U.S. Borrower and any of its other Subsidiaries in the ordinary course of business;
(j) Indebtedness of the U.S. Borrower and its Subsidiaries in the form of Real Estate Financing Transactions and any Permitted Refinancing Indebtedness in respect thereof, provided the aggregate principal amount of all Indebtedness permitted under this Section 6.01(e6.01(j) and Section 6.01(k) (including all such Indebtedness existing on the Effective Date and listed on Schedule 6.01) does not exceed in the aggregate $350,000,000 at any time outstanding;
(k) Indebtedness of the U.S. Borrower and its Subsidiaries in the form of Equipment Financing Transactions and any Permitted Refinancing Indebtedness in respect thereof, provided the aggregate principal amount of all Indebtedness permitted under this Section 6.01(k) and Section 6.01(j) (including all such Indebtedness existing on the Closing Date and listed on Schedule 6.01) does not exceed in the aggregate $350,000,000 at any time outstanding;
(l) Indebtedness arising from agreements of the U.S. Borrower or any of its Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets or Equity Interests of a Subsidiary, other than intercompany current liabilities guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Equity Interests of a Subsidiary; provided, however, that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the U.S. Borrower or such Subsidiary in connection with such disposition;
(m) customary unsecured indemnification obligations and other unsecured Guarantees of the U.S. Borrower incurred in connection with any Permitted Foreign Receivables Transaction or any Foreign Inventory Transaction;
(n) Indebtedness of the U.S. Borrower to any of its Subsidiaries or of any of its Subsidiaries to any of its Subsidiaries in connection with transactions incurred in the ordinary course of business in connection with an amount not to exceed the cash management, tax value thereof and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentany related servicing fees;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
Appears in 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness for borrowed money that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements or any other swap, hedging or derivative arrangement in the ordinary course of business, in each case entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax Tax and accounting operations of the Borrower and the its Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentAgent (but only to the extent permitted by applicable law and not giving rise to material adverse Tax consequences);
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
Appears in 2 contracts
Sources: Credit Agreement (Westrock Coffee Co), Incremental Assumption Agreement and Amendment No. 1 (Westrock Coffee Co)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Amendment Two Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposespermitted by Section 6.11;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of (i) any Subsidiary Loan Party to the Borrower or any other Subsidiary, (ii) the Borrower to any Subsidiary and of Loan Party or (iii) any Subsidiary other than a Subsidiary Loan Party to the Borrower or any other Subsidiary; provided, provided that (A) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to clauses (i) and (ii) of this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be unsecured and subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentAgent and (B) Indebtedness pursuant to clause (iii) of this Section 6.01(e) shall be subject to Section 6.04(a);
(f) Indebtedness (including obligations in respect of letters of credit, in an amount not to exceed, in the aggregate with the Indebtedness under Section 6.01(m)(A) and Section 6.01(v) below, $25.0 million outstanding at any time) in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including (x) those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent business, so long as the underlying obligations with past practice or industry practicesrespect to any of the foregoing are not Indebtedness for borrowed money and (y) those intended to secure a Guarantee permitted under Section 6.01(v);
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesobligations under Cash Management Agreements, in each case incurred in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of notification to the Borrower or other applicable Loan Party or Subsidiary of its incurrence, and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date, and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger or consolidation or amalgamation is permitted by this Agreement, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger or consolidation or amalgamation, the assumption and incurrence of any Indebtedness and any related transactions, the Borrower and the other Subsidiaries of Holdings shall be in Pro Forma Compliance;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of any property (real or personal and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance the acquisition, lease or improvement of such property, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate outstanding principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases permitted under Section 6.03, would not exceed $150.0 million; provided, any such Indebtedness (i) shall be secured only by the property acquired or improved (and any related property and assets subject to a common financing program of the type permitted under this Section 6.01(i)) in connection with the incurrence of such Indebtedness and proceeds, improvements and replacements thereof, (ii) shall not be secured by a Lien on Collateral and (iii) shall constitute not more than 100% of the aggregate consideration paid with respect to such property or improvement (and any related property subject to a common financing program of the type permitted under this Section 6.01(i));
Appears in 2 contracts
Sources: Credit Agreement (Verso Corp), Credit Agreement (Verso Corp)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary Restricted Subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eBorrower);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary and the Restricted Subsidiaries pursuant to Hedging Agreements entered into for non-speculative purposesPermitted Swap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any SubsidiaryRestricted Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such personPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, in each case in the ordinary course of business or consistent with past practice or industry practicessuch obligations are reimbursed not later than 30 days following such incurrence;
(e) unsecured Indebtedness of the Borrower or any Subsidiary Loan Party owing to any Subsidiary and of any Subsidiary to other Loan Party (the Borrower or any other Subsidiary; “Subordinated Intercompany Debt”), provided, that such Indebtedness owed by any Loan Party is not held, assigned, transferred, negotiated or pledged to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (Person other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash managementa Loan Party, tax and accounting operations of the Borrower and the Subsidiaries) provided, further, that any such Indebtedness for borrowed money shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided, that (i) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Restricted Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Restricted Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger, amalgamation or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that the aggregate principal amount of such Indebtedness outstanding at any time (together with Indebtedness outstanding pursuant to this paragraph (h) and paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), shall not exceed the greater of (A) U.S.$50.0 million and (B) 5.5% of Consolidated Total Assets;
(i) Capital Lease Obligations (including any Sale and Lease-Back Transaction that is permitted under Section 6.03) and Purchase Money Obligations to the extent that the aggregate total of all such Capital Lease Obligations and Purchase Money Obligations outstanding at any one time (together with Indebtedness outstanding pursuant to this paragraph (i) and paragraph (h) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), shall not exceed the greater of (A) U.S.$50.0 million and (B) 5.5% of Consolidated Total Assets;
(j) other secured junior Indebtedness of the Borrower or any Subsidiary Loan Party; provided, that (i) the Liens securing the Obligations shall be senior to the Liens securing such other secured junior Indebtedness, (ii) on or prior to the incurrence or creation of such other Indebtedness, the agent and lenders under such facility shall have entered into such intercreditor agreements as may be reasonably required or agreed by the Administrative Agent, (iii) to the extent required by Section 2.04(b) and Section 2.04(c), the Net Proceeds of such secured junior Indebtedness is applied to prepay the Loans, (iv) no such secured junior Indebtedness shall provide for a final maturity date, scheduled amortization or any other scheduled repayment, mandatory redemption or sinking fund obligation prior to the Maturity Date, (v) the incurrence of such senior secured junior Indebtedness is permitted by the Revolving Credit Facility, and (vi) no Default or Event of Default then exists or would result therefrom;
(k) Guarantees (i) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (ii) by the Borrower or any Restricted Subsidiary of Indebtedness of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent permitted by Section 6.04, and (iii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party; provided, that Guarantees under clause (ii) of this Section 6.01(k) and any other Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(k) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to be used, for Subordinated Intercompany Debt;
(l) Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(m) Indebtedness supported by any Letter of Credit (as defined in the Revolving Credit Agreement) that is (i) outstanding on the Closing Date or (ii) issued after the Closing Date in connection with agreements existing on the Closing Date that contemplate or require the issuance of letters of credit; provided, that (x) any such Letter of Credit shall be issued in connection with the Double E Joint Venture or otherwise issued in respect of Indebtedness incurred in the ordinary course of businessbusiness or with respect to trade payables and (y) the aggregate amount available to be drawn under all such Letters of Credit shall not exceed $100.0 million.
(n) Indebtedness consisting of Permitted Junior Debt;
(o) Guarantees of Indebtedness of Unrestricted Subsidiaries and other Persons that are not Loan Parties or Restricted Subsidiaries to the extent that Investments are permitted under Section 6.04(g);
(p) other unsecured Indebtedness not otherwise permitted by this Section 6.01 in an aggregate principal amount at any time outstanding not to exceed U.S.$25.0 million;
(q) Indebtedness of Summit Permian incurred pursuant to the IRB Lease Agreement;
(r) Indebtedness incurred under the Revolving Credit Agreement and Indebtedness pursuant to any Secured Swap Agreements (as defined in the Revolving Credit Agreement) constituting Permitted Swap Agreements and entered into to effectively cap, collar or exchange interest rates with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary Loan Party; provided that such Indebtedness (i) is subject at all times to the Intercreditor Agreement and (ii) the aggregate principal amount at any time outstanding under the Revolving Credit Agreement shall not exceed U.S.$1.0 billion; and provided further, that before and after giving effect to such incurrence, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenants, as computed as of the date of the incurrence of such Indebtedness;
(s) Indebtedness incurred under the SMLP Holdings Credit Agreement; provided that such Indebtedness is subject at all times to the Intercreditor Agreement; and
(t) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (s) above.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Summit Midstream Partners, LP), Purchase Agreement (Summit Midstream Partners, LP)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ ' compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers' compensation claims, in each case in the ordinary course of business or consistent with past practice or industry practicessuch obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, provided that (i) Indebtedness owed by of any Subsidiary that is not a Subsidiary Loan Party to any Loan Party shall be subject to Section 6.04(b) and (ii) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Subsidiary Loan Party shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentObligations;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a corporation merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h) and paragraph (i) of this Section 6.01), would not exceed the greater of $50.0 million and 4.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such acquisition, merger or consolidation, such assumption or such incurrence, as applicable, for which financial statements have been delivered pursuant to Section 5.04, determined on a Pro Forma Basis;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the applicable asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01 and this paragraph (i)) would not exceed the greater of $50.0 million and 4.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, determined on a Pro Forma Basis;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $50.0 million and 4.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Guarantees (i) by any Loan Party of the Indebtedness of the Borrower referred to in paragraph (l) or any Permitted Refinancing Indebtedness in respect thereof, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04(b) and (iv) by any Foreign Subsidiary of Indebtedness of another Foreign Subsidiary; provided that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(l) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to such other Indebtedness to the same extent;
(m) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case case, incurred or assumed in connection with the disposition of any business or assets of the Borrower or a Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(n) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $5.0 million at any time outstanding;
(o) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit; provided that such Indebtedness is promptly repaid with the proceeds of any drawing on such Letter of Credit;
(p) Indebtedness consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(q) Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed $25.0 million at any time outstanding;
(r) unsecured Indebtedness consisting of Permitted Junior Debt and Permitted Refinancing Indebtedness in respect thereof;
(s) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (q) above; and
(t) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protection and similar arrangements, in each case, in connection with cash management and deposit accounts.
Appears in 2 contracts
Sources: Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person (x) not intercompany Indebtedness (other than the Borrower and/or one or more Indebtedness of its Subsidiaries, in an aggregate amount Loan Parties to Subsidiaries that are not Loan Parties) and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrowers or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eSubsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of Holdings, the Borrower Borrowers or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Holdings, either Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower Borrowers to Holdings or any Subsidiary Subsidiary, of Holdings to the Borrowers or any Subsidiary, and of any Subsidiary to Holdings, the Borrower Borrowers or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit K hereto or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower Representative;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with Holdings or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by Holdings or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (x) in the case of any such Indebtedness secured by Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 3.50 to 1.00, (y) in the case of any such Indebtedness secured by Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 4.50 to 1.00, and (z) in the case of any other such Indebtedness, the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 5.60 to 1.00; provided, that the aggregate principal amount of Indebtedness outstanding under this clause (h) that is incurred by a Subsidiary other than a Loan Party immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed the greater of $100,000,000 and 55% of Relevant EBITDA; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by Holdings or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed the greater of $50,000,000 and 30% of Relevant EBITDA and (y) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capitalized Lease Obligations and any other Indebtedness incurred by Holdings or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of Holdings or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $90,000,000 and 50% of Relevant EBITDA, and any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of Holdings or any Subsidiaries in an aggregate outstanding principal amount not greater than 100% of the net cash proceeds received by Holdings or either Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, Holdings or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions;
(m) Guarantees (i) by Holdings, the Borrowers or any other Loan Party of any Indebtedness of Holdings, the Borrowers or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by Holdings, any Borrower or any other Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by Holdings, Intermediate Holdings or the Borrowers of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by either Borrower or any other Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of Holdings, either Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any acquisition permitted by this Agreement, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) [Reserved];
(i) Indebtedness secured by Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.25 to 1.00; provided, that any Indebtedness outstanding under this clause (q)(i) shall be subject to Section 2.21(b)(vii); provided further, that the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(r)(i) and
Section 6.01 (s)(i) that are incurred by Subsidiaries other than the Loan Parties, the greater of $100,000,000 and 55% of Relevant EBITDA, and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided further that (x) the final maturity date of such Indebtedness is on or after the Latest Maturity Date and (y) the Weighted Average Life to Maturity of such Indebtedness is greater than or equal to the Weighted Average Life to Maturity of the Class of Term Loans with the longest Weighted Average Life to Maturity;
(i) Indebtedness secured by Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 4.25 to 1.00; provided, that the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Loan Parties, the greater of $100,000,000 and 55% of Relevant EBITDA, and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided further that (x) the final maturity date of such Indebtedness is on or after the Latest Maturity Date; (y) the Weighted Average Life to Maturity of such Indebtedness is greater than or equal to the Weighted Average Life to Maturity of the Class of Term Loans with the longest Weighted Average Life to Maturity; and (z), the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Latest Maturity Date (other than customary offers to repurchase or mandatory prepayment provisions upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default);
(i) other Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 5.60 to 1.00; provided, that the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Loan Parties, the greater of $100,000,000 and 55% of Relevant EBITDA, and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided, further that (x) the final maturity date of such Indebtedness is on or after the Latest Maturity Date; (y) the Weighted Average Life to Maturity of such Indebtedness is greater than or equal to the Weighted Average Life to Maturity of the Class of Term Loans with the longest Weighted Average Life to Maturity; and (z), the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the Latest Maturity Date (other than customary offers to repurchase or mandatory prepayment provisions upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default);
(t) Indebtedness of Subsidiaries that are not Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $50,000,000 and 30% of Relevant EBITDA, and any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of Holdings or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of Holdings (or, to the extent such work is done for Holdings or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(y) Refinancing Notes and any Permitted Refinancing Indebtedness incurred in respect thereof;
(z) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time, provided that any such Indebtedness if in the form of term loans secured by liens ranking pari passu with liens securing the Term Loans shall be subject to the requirements of Section 2.21(b)(vii), and any Permitted Refinancing Indebtedness in respect thereof;
(aa) Guarantees of Indebtedness under customer financing lines of credit entered into in the ordinary course of business;
(bb) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $50,000,000 and 30% of Relevant EBITDA, and any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by Holdings or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of Holdings or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisiti
Appears in 2 contracts
Sources: Credit Agreement (Presidio, Inc.), Credit Agreement (Presidio, Inc.)
Indebtedness. IncurThe Borrower will not, and will not permit any other Group Member to, incur, create, assume or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (the Loans or other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Secured Obligations;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under of the other Loan Documents and Group Members existing on the date hereof set forth on Schedule 9.02 as well as any Permitted Refinancing Notes incurred to Refinance such IndebtednessIndebtedness in respect thereof;
(c) purchase money Indebtedness of or Capital Lease Obligations not to exceed $30,000,000 in the Borrower or aggregate at any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesone time outstanding;
(d) unsecured Indebtedness owed to (including associated with worker’s compensation claims, bonds or surety obligations in respect of letters of credit required by Governmental Requirements or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred third parties in the ordinary course of business in connection with the cash managementoperation of, tax or provision for the abandonment and accounting operations remediation of, the Oil and Gas Properties;
(e) (i) Indebtedness among the Borrower and its Subsidiaries which are Loan Parties, (ii) Indebtedness between the Subsidiaries of the Borrower which are not Loan Parties and (iii) Indebtedness extended to the SubsidiariesBorrower and its Subsidiaries which are Loan Parties by any Group Members; provided that (A) such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Person other than a Loan Party and (B) any such Indebtedness owed by either the Borrower or a Guarantor shall be subordinated in right of payment to the Loan Secured Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect endorsements of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred negotiable instruments for collection in the ordinary course of business;
(g) any guarantee of any other Indebtedness permitted to be incurred hereunder;
(h) unsecured Indebtedness in respect of Swap Agreements entered into in compliance with Section 9.17;
(i) Indebtedness of the Borrower in respect of Permitted Unsecured Debt and any Permitted Refinancing Indebtedness of such Indebtedness provided, that (i) such Indebtedness does not exceed $500,000,000 of principal in the aggregate outstanding at any time and (ii) giving pro forma effect to such Indebtedness and the repayment of any other Indebtedness with the proceeds thereof, (A) no Default, Event of Default or Borrowing Base Deficiency exists at such time, (B) the ratio of Total Net Debt to EBITDAX for the most recent four Fiscal Quarters for which financial statements are available is in compliance with Section 9.01(a) and (B) the Availability is equal to or greater than 15%; and
(j) other Indebtedness not to exceed $15,000,000 in the aggregate at any one time outstanding.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Diversified Energy Co PLC), Revolving Credit Agreement (Diversified Energy Co PLC)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred in respect thereof (other than intercompany Indebtedness Refinanced with Indebtedness owed to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(bi) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes incurred to Refinance such IndebtednessIndebtedness in respect thereof;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness in respect of self-insurance and Indebtedness and other obligations owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesnorm;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J hereto or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesnorm, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesnorm;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in each case incurred in the ordinary course of business or other cash management services, in each case services incurred in the ordinary course of businessbusiness or consistent with past practice or industry norm;
Appears in 2 contracts
Sources: Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 1,000,000 shall be set forth in on Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Loan Party shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit K hereto or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(h) [Reserved];
(i) Capitalized Lease Obligations and mortgage financings incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the aggregate amount of any other Indebtedness outstanding pursuant to this Section 6.01(i), would not exceed the greater of $5,000,000 and 0.046 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capitalized Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(k) [Reserved];
(l) [Reserved];
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred hereunder to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations under this Agreement to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) Indebtedness to finance the acquisition or ownership of aircrafts and aircraft equipment (including airframes, engines, appliances, equipment, instruments or related property), including (x) Capitalized Lease Obligations and (y) transactions through equipment trust certificates or enhanced equipment trust certificates structures;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) other unsecured Indebtedness or Indebtedness secured by Liens on the Collateral that are junior to, the Liens securing the Loan Obligations in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the aggregate amount of any other Indebtedness outstanding pursuant to this Section 6.01(r), would not exceed $10,000,000, and any Permitted Refinancing Indebtedness in respect thereof;
(s) [Reserved];
(t) [Reserved];
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or the Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) obligations in respect of Cash Management Agreements;
(x) [Reserved];
(y) [Reserved];
(z) [Reserved];
(aa) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures that at the time of, and after giving effect to, the incurrence thereof, together with the aggregate amount of any other Indebtedness outstanding pursuant to this Section 6.01(aa), would not exceed the greater of $5,000,000 and 0.046 times EBITDAR calculated on a Pro Forma Basis for the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(bb) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(cc) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisitions or any other Investment permitted hereunder;
(dd) Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower and the Subsidiaries;
(ee) [Reserved];
(ff) [Reserved]; and
(gg) all premium (if any, including tender premiums) expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (ff) above or refinancings thereof. For purposes of determining compliance with this Section 6.01, 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 or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date on which 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 (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing. Further, for purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness described in Sections 6.01(a) through (gg) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness described in Sections 6.01(a) through (gg), the Borrower shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 and will only be required to include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses and such item of Indebtedness shall be treated as having been incurred or existing pursuant to only one of such clauses; provided, that (i) all Indebtedness under outstanding on the Closing Date under this Agreement shall at all times be deemed to have been incurred pursuant to clause (p)(i) of this Section 6.01. In addition, with respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.
Appears in 2 contracts
Sources: Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.), Asset Based Revolving Credit Agreement (Sun Country Airlines Holdings, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness existing on the Closing Date and (other than as described in Section 6.01(bthe case of any existing letters of credit to be replaced with Letters of Credit issued hereunder) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Company or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eSubsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary Company and the Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Company or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson, in each case in provided that upon the ordinary course incurrence of business or consistent Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than thirty (30) days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of Company or any Subsidiary to the Borrower or any other Subsidiary; providedextent permitted by Section 6.04, provided that Indebtedness owed by of any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) Loan Party (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business, provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within three (3) Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within sixty (60) days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a Person merged into or consolidated with the Company or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness, provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), would not exceed U.S.$50.0 million;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Company or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed U.S.$50.0 million;
(j) Capital Lease Obligations incurred by the Company or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of U.S.$50.0 million;
(l) unsecured senior or subordinated Indebtedness of the Borrowers and any unsecured senior or subordinated Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness, in each case in the form of Permitted Debt Securities; provided that both immediately prior to and after giving effect (including pro forma effect) thereto, no Default or Event of Default shall exist or would result therefrom;
(m) Guarantees (i) by the Loan Parties of the Indebtedness of the Borrowers described in paragraph (l), (ii) by any Loan Party of any Indebtedness of the Company or any Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Company or any Subsidiary of Indebtedness otherwise expressly permitted hereunder of the Company or any Subsidiary that is not a Loan Party to the extent permitted by Section 6.04, (iv) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party; provided that all Foreign Subsidiaries may guarantee obligations of other Foreign Subsidiaries under ordinary course cash management obligations, and (v) by the Company or any Subsidiary of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(a), (k) or (s); provided that Guarantees by any Loan Party under this Section 6.01(m) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to be used, for Subordinated Intercompany Debt;
(n) Indebtedness arising from agreements of the Company or any Subsidiary providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(o) Indebtedness in connection with Permitted Receivables Financings; provided that the proceeds thereof are applied in accordance with Section 2.11(c) to the extent they constitute Net Proceeds;
(p) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of U.S.$20.0 million;
(q) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(r) [Intentionally Omitted];
(s) Indebtedness of Foreign Subsidiaries (including letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) and including all Indebtedness of Chart Ferox, a.s. under its existing revolving credit facilities or any refinancings thereof) for working capital purposes incurred in the ordinary course of businessbusiness in an aggregate amount not to exceed U.S.$30.0 million outstanding at any time;
(t) Indebtedness of the Company and its Subsidiaries in respect of factoring of receivables from a foreign customer held by the Company and its Subsidiaries in an aggregate principal amount not to exceed U.S. $15.0 million at any time;
(u) [Intentionally Omitted]; and
(v) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (t) above.
Appears in 2 contracts
Sources: Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 to the Disclosure Letter and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of Person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements a Swap Agreement not entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, in each case in the ordinary course of business or consistent with past practice or industry practicessuch obligations are reimbursed not later than 60 days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, provided that (i) Indebtedness owed by of any Subsidiary that is not a Subsidiary Loan Party to any Loan Party shall be subject to Section 6.04(b) or (t) and (ii) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (Subsidiary Loan Party that is evidenced by a note or other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) instrument shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentObligations;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesobligations;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days of its incurrence;
(i) Indebtedness of a Subsidiary or a corporation merged into or consolidated with the Borrower or any Subsidiary and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement; provided that the aggregate principal amount of such Indebtedness acquired after the Closing Date and outstanding at any time under this paragraph (h), after giving effect to such acquisition, merger or consolidation, such assumption or such incurrence, as applicable, would not exceed the greater of $250.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such acquisition, merger or consolidation, such assumption or such incurrence, as applicable, for which financial statements have been delivered pursuant to Section 5.04, determined on a Pro Forma Basis; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the applicable asset in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount outstanding at any time under this paragraph (i) after giving effect to the incurrence thereof would not exceed the greater of $150.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, determined on a Pro Forma Basis;
(j) [reserved];
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding at any time under this paragraph (k) after giving effect to the incurrence thereof, would not exceed the greater of $250.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, at any time;
(l) Guarantees (i) by any Loan Party of the Indebtedness of the Borrower referred to in paragraph (r) or any Permitted Refinancing Indebtedness in respect thereof, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04(b) and (iv) by any Foreign Subsidiary of Indebtedness of another Foreign Subsidiary; provided that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(l) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to such other Indebtedness to the same extent;
(m) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case case, incurred or assumed in connection with the disposition of any business or assets of the Borrower or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(n) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $25.0 million at any time outstanding, provided that if the Revolving Facility Commitments are reduced pursuant to Section 2.08, such amount shall be increased by the amount of the Revolving Facility Commitment that was reduced, up to $75.0 million;
(o) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit; provided that such Indebtedness is promptly repaid with the proceeds of any drawing on such Letter of Credit;
(p) Indebtedness consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(q) Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed the greater of $100.0 million and 10% of Foreign Subsidiary Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, at any time;
(r) Permitted Junior Debt and Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness incurred by any Loan Party in the form of first lien notes secured on a pari passu basis with the Loans and Commitments (“First Lien Pari Passu Notes”) or second lien loans notes secured on a senior secured second lien basis (“Second Lien Senior Secured Debt”) so long as (x) (A) no Default or Event of Default shall have occurred and be continuing and (B) after giving effect to the incurrence of such First Lien Pari Passu Notes or Second Lien Senior Secured Debt the Consolidated Senior Secured Leverage Ratio does not exceed 4.00 to 1.00 on a Pro Forma Basis as of the most recent Test Period and as of the date of such incurrence, the Consolidated Leverage Ratio does not exceed 5.75 to 1.00 on a Pro Forma Basis as of the most recent Test Period and as of the date of such incurrence and (y) the trustee or other representative for such First Lien Pari Passu Notes or Second Lien Senior Secured Debt, as applicable, shall have entered into an intercreditor agreement with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent;
Appears in 2 contracts
Sources: Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 2,000,000 shall be set forth in on Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Loan Party shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the global intercompany note substantially in the form of Exhibit J hereto or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests, where such acquisition, merger or consolidation is not prohibited by this Agreement (including a Permitted Business Acquisition); provided, that, (x) in the case of any such Indebtedness secured by Liens on Collateral that rank pari passu with the Liens on the Collateral securing the Term B Loans, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the net cash proceeds of such Indebtedness incurred on such date against the applicable amount of Consolidated Debt for purposes of such calculation at such time), and any related transactions is (I) not greater than 4.25 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto and (y) in the case of any other such Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the net cash proceeds of such Indebtedness incurred on such date against the applicable amount of Consolidated Debt for purposes of such calculation at such time), and any related transactions is (I) not greater than 4.75 to 1.00 or (II) no greater than the Total Net Leverage Ratio in effect immediately prior thereto; provided that (1) the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation (except for any seller note or other seller financing) shall be subject to the last paragraph of this Section 6.01 and (2) the aggregate outstanding principal amount of Indebtedness permitted under this clause (h)(i) incurred by a Subsidiary other than a Subsidiary Loan Party in contemplation of such acquisition, merger or consolidation, together with the aggregate principal amount of Indebtedness of a Subsidiary other than a Subsidiary Loan Party then outstanding pursuant to Section 6.01(s)(i), shall not exceed the greater of $30,000,000 and 4.25% of Consolidated Total Assets as at the end of the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed (A) the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period plus (B) any additional amounts, so long as immediately after giving effect to the incurrence of such additional amounts under this clause (B) and the use of proceeds thereof, the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 4.75 to 1.00, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capitalized Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(k) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(l) [Reserved];
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) other Indebtedness or Disqualified Stock of the Borrower or any Subsidiaries in an aggregate outstanding principal amount or liquidation preference not greater than 100.0% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or any Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries and other than Permitted Cure Securities), to the extent that such net cash proceeds do not increase the Cumulative Credit and do not constitute Excluded Contributions;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) Indebtedness secured by Liens on the Collateral ranking pari passu with the Liens on the Collateral securing the Term B Loans so long as (x) at the time of incurrence thereof, no Default or Event of Default shall have occurred and be continuing and (y) immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 4.25 to 1.00; provided that, (1) the net cash proceeds of Indebtedness incurred under this clause (r)(i) at such time shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Net First Lien Leverage Ratio at such time and (2) the incurrence of any Indebtedness pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness so long as (x) at the time of incurrence thereof, no Default or Event of Default shall have occurred and be continuing, (y) immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 4.75 to 1.00 and (z) the aggregate principal amount of Indebtedness permitted under this clause (s)(i) incurred by a Subsidiary other than a Subsidiary Loan Party, together with the aggregate principal amount of Indebtedness of a Subsidiary other than a Subsidiary Loan Party then outstanding pursuant to Section 6.01(h)(i) incurred in contemplation of an acquisition, merger or consolidation, shall not exceed the greater of $30,000,000 and 4.25% of Consolidated Total Assets as at the end of the then most recently ended Test Period; provided that, (1) the net cash proceeds of Indebtedness incurred under this clause (s)(i) at such time shall not be netted against the applicable amount of Consolidated Debt for purposes of such calculation of the Total Net Leverage Ratio at such time and (2) the incurrence of any Indebtedness pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements.
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Receivables Financings;
(x) obligations in respect of Cash Management Agreements;
(y) Refinancing Notes and any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time; provided, that (1) there shall be no obligor in respect of any such Indebtedness that is not a Loan Party and (2) the incurrence of any Indebtedness pursuant to this clause (z)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) Guarantees of Indebtedness under ordinary course customer financing lines or credit;
(bb) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $30,000,000 and 4.25% of the Consolidated Total Assets as at the end of the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisitions or any other Investment permitted hereunder;
(ee) Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower and its Subsidiaries;
(ff) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit; and
(gg) all premium (if any, including tender premiums) expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (ff) above or refinancings thereof. For purposes of dete
Appears in 2 contracts
Sources: First Lien Credit Agreement (AP Gaming Holdco, Inc.), First Lien Credit Agreement (AP Gaming Holdco, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Loan Party shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms substantially in the form of Exhibit J hereto or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (w) in the case of Indebtedness secured by Liens on the Collateral ranking pari passu with the Liens on the Collateral securing the Loans, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and any related transactions is (I) not greater than 4.00 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (x) in the case of Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Loans, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and any related transactions is (I) not greater than 4.75 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of other Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and any related transactions is (I) not greater than 5.25 to 1.00 or (II) no greater than the Total Net Leverage Ratio in effect immediately prior thereto and (z) the aggregate outstanding principal amount of Indebtedness permitted under this clause (h) incurred by a Subsidiary other than a Subsidiary Loan Party, together with the aggregate principal amount of Indebtedness of a Subsidiary other than a Subsidiary Loan Party then outstanding pursuant to Section 6.01(t), shall not exceed the greater of $100,000,000 and 4% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b); provided that the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation (except for any seller note or other seller financing) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed (A) the greater of $150,000,000 and 5.75% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) plus (B) any additional amounts, so long as immediately after giving effect to the incurrence of such additional amounts under this clause (B) and the use of proceeds thereof, the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 5.75 to 1.0, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capitalized Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $175,000,000 and 7.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), and any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Loans so long as immediately after giving effect to the issuance or incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 4.75 to 1.00; provided, that the incurrence of debt for borrowed money pursuant to this clause (l)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(i) Indebtedness in respect of the First Lien Notes in an aggregate principal amount outstanding not to exceed $800,000,000 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) Indebtedness secured by Liens on the Collateral ranking pari passu with the Liens on the Collateral securing the Loans so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 4.00 to 1.00 (but without netting any of the net cash proceeds thereof); provided, that the incurrence of debt for borrowed money pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) unsecured Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the net cash proceeds thereof), the Total Net Leverage Ratio on a Pro Forma Basis is not greater than 5.25 to 1.00; provided, that (x) the aggregate principal amount of unsecured Indebtedness outstanding under this clause (s)(i) incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed the greater of $100,000,000 and 4% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) and (y) the incurrence of debt for borrowed money pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t) and pursuant to clause (z) of Section 6.01(h), would not exceed the greater of $100,000,000 and 4% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), and any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements.
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Receivables Financings;
(x) obligations in respect of Cash Management Agreements;
(y) Refinancing Notes and any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount not to exceed at the time of incurrence an amount equal to the amount determined pursuant to clause (i) of the definition of Incremental Amount at such time; provided, that (x) there shall be no obligor in respect of any such Indebtedness that is not a Loan Party and (y) the incurrence of debt for borrowed money pursuant to this clause (z)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) [Reserved];
(bb) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $100,000,000 and 4% of Consolidated Total Assets as of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b), and any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisitions or any other Investment permitted hereunder;
(ee) Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower and its Subsidiaries;
(ff) [Reserved];
(gg) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit; and
(hh) all premium (if any, including tender premiums) expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (gg) above or refinancings thereof; and For purposes of determining compliance with this Section 6.01, 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 or prior to the Closing Date, on
Appears in 2 contracts
Sources: First Lien Credit Agreement (McGraw-Hill Interamericana, Inc.), First Lien Credit Agreement (McGraw-Hill Global Education LLC)
Indebtedness. IncurNo Loan Party shall, nor shall it permit any of its Subsidiaries or the LS&Co. Trust to, directly or indirectly, create, incur, assume or permit suffer to exist any Indebtedness, except:
(a) Indebtedness owed by the U.S. Borrower or any of its Subsidiaries to the U.S. Borrower or any of its Subsidiaries; provided that (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower a Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant Obligations (in the case of Indebtedness of any U.S. Loan Party) or the Canadian Obligations (in the case of Indebtedness of any Canadian Loan Party) and (y) any Indebtedness owed by a U.S. Loan Party to Section 6.01(e)a Canadian Loan Party shall be subordinated to the Obligations;
(b) Indebtedness created hereunder (including pursuant to Section 2.21of the U.S. Loan Parties issued in a Capital Markets Transaction, Section 2.22 provided such Indebtedness is unsecured and Section 2.23) and under such Indebtedness does not have a stated maturity date or required principal payments earlier than 91 days after the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessMaturity Date;
(c) Indebtedness Guarantees of the U.S. Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesunder the LS&Co. Trust Agreement; provided that the investment activities of the LS&Co. Trust are in compliance with the Investment Policies;
(d) Indebtedness owed to Guarantees of (including obligations i) the U.S. Loan Parties in respect of letters the obligations of credit or bank guarantees or similar instruments for Loan Parties, (ii) the benefit ofCanadian Loan Parties in respect of the obligations of Canadian Loan Parties and (iii) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Foreign Subsidiaries that are not Loan Parties in respect of the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personof Foreign Subsidiaries that are not Loan Parties, in each case case, arising under or in connection with Banking Services in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(e) Indebtedness of the U.S. Borrower and its Subsidiaries outstanding on the Second Amendment and Restatement Effective Date and listed on Schedule 6.01 and any Permitted Refinancing Indebtedness in respect thereof; provided that intercompany Indebtedness set forth on Schedule 6.01 may not be refinanced pursuant to Section 6.01(e) with third-party Indebtedness;
(f) Indebtedness of the Loan Parties under the Loan Documents;
(g) Indebtedness of the U.S. Borrower and its Subsidiaries secured by Liens permitted by Section 6.02(c) not to exceed in the aggregate $200,000,000 at any Subsidiary and time outstanding;
(h) Indebtedness of any Subsidiary to the U.S. Borrower or any other Subsidiary; providedSubsidiary in respect of Swap Agreements permitted under Section 6.07;
(i) so long as the Minimum Intercompany Transaction Requirement is met (unless pro forma Availability is not less than the greater of (x) $75.0 million and (y) 10% of the Line Cap, that in which case, the Minimum Intercompany Transaction Requirement need not be met), Indebtedness owed by (in the case of Indebtedness of (A) any U.S. Loan Party to any Subsidiary that is not a Guarantor incurred pursuant U.S. Loan Party or (B) any Canadian Loan Party to any Subsidiary that is not a Loan Party, maturing at least six months after the Maturity Date) of the U.S. Borrower and its Subsidiaries to LSIFCS or any other Affiliate of the U.S. Borrower providing services similar to the services provided by LSIFCS in the ordinary course of business and Indebtedness (in the case of Indebtedness of (A) any U.S. Loan Party to any Subsidiary that is not a U.S. Loan Party or (B) any Canadian Loan Party to any Subsidiary that is not a Loan Party, maturing at least six months after the Maturity Date) of LSIFCS or any other Affiliate of the U.S. Borrower providing services similar to the services provided by LSIFCS to the U.S. Borrower and any of its other Subsidiaries in the ordinary course of business;
(j) Indebtedness of the U.S. Borrower and its Subsidiaries in the form of Real Estate Financing Transactions and any Permitted Refinancing Indebtedness in respect thereof, provided the aggregate principal amount of all Indebtedness permitted under this Section 6.01(e6.01(j) and Section 6.01(k) (including all such Indebtedness existing on the Second Amendment and Restatement Effective Date and listed on Schedule 6.01) does not exceed in the aggregate $350,000,000 at any time outstanding;
(k) Indebtedness of the U.S. Borrower and its Subsidiaries in the form of Equipment Financing Transactions and any Permitted Refinancing Indebtedness in respect thereof, provided the aggregate principal amount of all Indebtedness permitted under this Section 6.01(k) and Section 6.01(j) (including all such Indebtedness existing on the Second Amendment and Restatement Effective Date and listed on Schedule 6.01) does not exceed in the aggregate $350,000,000 at any time outstanding;
(l) Indebtedness arising from agreements of the U.S. Borrower or any of its Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any business, assets or Equity Interests of a Subsidiary, other than intercompany current liabilities guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Equity Interests of a Subsidiary; provided, however, that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the U.S. Borrower or such Subsidiary in connection with such disposition;
(m) customary unsecured indemnification obligations and other unsecured Guarantees of the U.S. Borrower incurred in connection with any Permitted Foreign Receivables Transaction or any Foreign Inventory Transaction;
(n) Indebtedness of the U.S. Borrower to any of its Subsidiaries or of any of its Subsidiaries to any of its Subsidiaries in connection with transactions incurred in the ordinary course of business in connection with an amount not to exceed the cash management, tax value thereof and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentany related servicing fees;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
Appears in 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Indebtedness. Incur, create, create or assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, provided that any such item of Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount individually in excess of $5,000,000 20,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of Person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section or 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of among the Borrower to and any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiaryits Subsidiaries; provided, that Indebtedness owed by of any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Loan Party shall be subordinated in right of payment to the Loan Obligations under any Indebtedness otherwise incurred pursuant to this Agreement on terms reasonably satisfactory to the Administrative AgentSection 6.01(e);
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a Person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition or other permitted Investment), where such acquisition, merger or consolidation is not prohibited by this Agreement and such assumed Indebtedness was not incurred in contemplation of such acquisition, merger or consolidation and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (i) Finance Lease Obligations, purchase money or mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed sum of (1) the greater of (x) $200,000,000 and (y) 0.50 times EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (2) an unlimited amount so long as the Net Secured Leverage Ratio (assuming all Indebtedness incurred pursuant to this Section 6.01(i) (including Indebtedness for which this clause (2) is being tested) or similar Indebtedness outstanding under Section 6.01(a), is secured by Collateral) on a Pro Forma Basis is not greater than 6.00:1.00, (ii) Finance Lease Obligations incurred by the Borrower or any Subsidiary to finance (whether prior to or within 270 days after) the acquisition, lease, construction, repair, replacement or improvement of computer equipment (including servers), storage equipment, networking equipment and other equipment and similar assets related to the business of the Borrower and the Subsidiaries and any finance lease obligations not prohibited hereunder and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Finance Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction not prohibited by this Agreement, (ii) Finance Lease Obligations or other obligations or deferrals attributable to capital spending and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k) or incurred in reliance on the Incremental Amount on reliance of the proviso below, would not exceed the greater of (x) $350,000,000 and (y) 0.88 times EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period (provided that, at the option of the Borrower, amounts available under this Section 6.01(k) may be reallocated to increase clause (i) of the “Incremental Amount”, which shall be deemed to be a utilization of this Section 6.01(k) (unless reallocated in accordance with the definition of “Incremental Amount”) and, to the extent secured, Section 6.02(ii)), and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of the Borrower or any Subsidiary (“Contribution Debt”) in an aggregate outstanding principal amount up to 200% of the amount of cash or Permitted Investments, or the fair market value (as determined by the Borrower in good faith) of other property contributed to or received by the Borrower after the Closing Date in respect of (x) the issuance or sale of its Qualified Equity Interests or Equity Interests of any Parent Entity to the extent contributed to the Borrower in cash, Permitted Equity or property other than cash (or, in each case, member loans on terms reasonably acceptable to the Administrative Agent) or (y) contributions to its Permitted Equity (or member loans on terms reasonably acceptable to the Administrative Agent) (in each case of clauses (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), in each case to the extent such capital contributions or other proceeds do not constitute Permitted Cure Securities and were not included in the calculation of the Cumulative Credit and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(m) Guarantees (including any co-issuance) by the Borrower and/or any Subsidiary of Indebtedness or other obligations of the Borrower or any Subsidiary and/or any joint venture otherwise not prohibited to be incurred pursuant to this Section 6.01; provided that in the case of any such Guarantee by any Loan Party or Subsidiary of the obligations of any joint venture that is not a Subsidiary, the related investment is permitted under Section 6.04;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade-related letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) [Reserved];
(i) Indebtedness of the Borrower and its Subsidiaries secured by Liens on Collateral that are Other First Liens in aggregate outstanding principal amount at any time outstanding not to exceed the sum of (A) the available capacity under the Incremental Starter Amount, plus (B) the available capacity under the Incremental Prepayment Amount, plus (C) an unlimited amount, so long as for purposes of this clause (C), immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than the greater of (I) 5.00 to 1.00 and (II) if such Indebtedness is incurred in connection with a Permitted Business Acquisition (including through a merger or consolidation) or an Investment, where such acquisition, merger, consolidation or Investment is not prohibited by this Agreement, the Net First Lien Leverage Ratio as of the most recently ended Test Period prior thereto; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(r)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of (x) $200,000,000 and (y) 0.50 times EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(r) (i) Indebtedness of the Borrower and its Subsidiaries secured by Liens on Collateral that are Junior Liens in aggregate outstanding principal amount at any time outstanding not to exceed the sum of (A) the available capacity under the Incremental Starter Amount, plus (B) the available capacity under the Incremental Prepayment Amount, plus (C) an unlimited amount, so long as for purposes of this clause (C), immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, either (A) the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than the greater of (I) 5.50 to 1.00 and (II) if such Indebtedness is incurred in connection with a Permitted Business Acquisition (including through a merger or consolidation) or an Investment, where such acquisition, merger, consolidation or Investment is not prohibited by this Agreement, the Net Secured Leverage Ratio as of the most recently ended Test Period or (B) the Cash Interest Coverage Ratio on a Pro Forma Basis is not less than the lesser of (I) 2.00 to 1.00 and (II) if such Indebtedness is incurred in connection with a Permitted Business Acquisition (including through a merger or consolidation) or an Investment, where such acquisition, merger, consolidation or Investment is not prohibited by this Agreement, the Cash Interest Coverage Ratio as of the most recently ended Test Period; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), this Section 6.01(r)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of (x) $200,000,000 and (y) 0.50 times EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of the Borrower and its Subsidiaries that is unsecured or secured by non-Collateral assets in aggregate outstanding principal amount at any time outstanding not to exceed the sum of (A) the available capacity under the Incremental Starter Amount, plus (B) the available capacity under the Incremental Prepayment Amount, plus (C) an unlimited amount, so long as for purposes of this clause (C), immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, either (A) the Net Total Leverage Ratio on a Pro Forma Basis is not greater than the greater of (I) 6.00 to 1.00 and (II) if such Indebtedness is incurred in connection with a Permitted Business Acquisition (including through a merger or consolidation) or an Investment, where such acquisition, merger, consolidation or Investment is not prohibited by this Agreement, the Net Total Leverage Ratio as of the most recently ended Test Period or (B) the Cash Interest Coverage Ratio on a Pro Forma Basis is not less than the lesser of (I) 2.00 to 1.00 and (II) if such Indebtedness is incurred in connection with a Permitted Business Acquisition (including through a merger or consolidation) or an Investment, where such acquisition, merger, consolidation or Investment is not prohibited by this Agreement, the Cash Interest Coverage Ratio as of the most recently ended Test Period; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), Section 6.01(r)(i), this Section 6.01(s)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of (x) $200,000,000 and (y) 0.50 times EBITDA calculated on a Pro Forma Basis for the most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the sum of (I) greater of (x) $200,000,000 and (y) 0.50 times EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (II) the sum of 90% of the face amount of such Subsidiaries’ accounts receivables plus 60% of the book value of such Subsidiaries’ inventory, plus 100% of such Subsidiaries’ cash and cash equivalents (determined in good faith by the Borrower and excluding cash and cash equivalents from the proceeds of the incurrence of Indebtedness) and (i) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to directors, officers, employees, consultants or independent contractors of the Borrower or any Subsidiary (or, to the extent such work is done for the Borrower or the Subsidiaries, any direct or indirect Parent Entity thereof) incurred in the ordi
Appears in 2 contracts
Sources: Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.), Revolving Facility Repricing Amendment (Alliance Laundry Holdings Inc.)
Indebtedness. Incur, create, assume assume, become or be liable in any manner with respect to, or permit to exist exist, any Indebtedness, exceptother than:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Obligations;
(b) Indebtedness created hereunder (including pursuant Revolving Loans in an aggregate principal amount at any time outstanding not to Section 2.21, Section 2.22 and Section 2.23) and under exceed $12,000,000 solely to the other Loan Documents and any Refinancing Notes incurred extent the Revolving Loans are subject to Refinance such Indebtednessthe Intercreditor Agreement;
(c) Indebtedness existing on the date of this Agreement and described on Schedule 3.01 of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesDisclosure Schedule;
(d) Indebtedness owed to incurred or assumed for the purpose of financing all or any part of the cost of acquiring any fixed asset (including obligations through Capitalized Leases), in respect of letters of credit or bank guarantees or similar instruments for the benefit ofan aggregate principal amount at any time outstanding not greater than $100,000;
(e) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to intercompany Indebtedness resulting from inter-company loans solely between (i) the Borrower or and any Subsidiary, pursuant to reimbursement or indemnification obligations to such personWholly-Owned Domestic Subsidiary Guarantor and (ii) Wholly-Owned Domestic Subsidiary Guarantors, in each case to the extent such Indebtedness is permitted by, and is subject to, the Intercompany Subordination Agreement;
(f) Guarantees to the extent permitted pursuant to Section 6.03;
(g) Seller Subordinated Debt in an aggregate principal amount at any time outstanding not to exceed $10,000,000 solely to the extent the Seller Subordinated Debt is subject to the Seller Debt Subordination Agreement;
(h) unsecured Indebtedness arising in connection with the endorsement of instruments or other payment items for deposit or incurred in respect of netting services, overdraft protection, and other like services, in each case, incurred in the Ordinary Course of Business;
(i) Indebtedness incurred in the Ordinary Course of Business under performance, surety, statutory or appeal bonds;
(j) Indebtedness owed to any Person providing property, casualty, liability or other insurance to any Loan Party, so long as the amount of such Indebtedness is not in excess of the amount of the unpaid cost of, and shall be incurred only to defer the cost of, such insurance for the year in which such Indebtedness is incurred and such Indebtedness is outstanding only during such year;
(k) Indebtedness incurred in the Ordinary Course of Business in respect of credit cards, credit card processing services, debit cards, stored value cards, commercial cards (including so-called “purchase cards”, “procurement cards” or “p-cards”), or cash management or related services in an aggregate amount not to exceed $250,000 at any time outstanding and provided that all amounts outstanding in respect of such credit cards, credit card processing services, debit cards, stored value cards, commercial cards, or cash management or related services are paid in full on a monthly basis;
(l) Indebtedness comprising Investments permitted under Section 6.06;
(m) accrual of interest, accretion or amortization of original issue discount, or the payment of interest in kind, in each case, on Indebtedness that otherwise constitutes Indebtedness permitted under this Section 6.01;
(n) obligations (contingent or otherwise) existing or arising under Swap Contracts in an amount not to exceed $250,000 in the aggregate at any time outstanding; provided, that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with fluctuations in interest rates or consistent with past practice or industry practicesforeign exchange rates and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(eo) Indebtedness of the Borrower Sponsor Subordinated Debt in an aggregate principal amount at any time outstanding not to any Subsidiary and of any Subsidiary exceed $470,000 solely to the Borrower or any other Subsidiaryextent the Sponsor Subordinated Debt is subject to the Sponsor Debt Subordination Agreement; providedand
(p) unsecured Indebtedness, that Indebtedness owed by any Loan Party of a type not described above, not to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred exceed $250,000 in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;aggregate at any time outstanding.
Appears in 2 contracts
Sources: Credit Agreement (LIVE VENTURES Inc), Credit Agreement (LIVE VENTURES Inc)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesSwap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (that, other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash managementmanagement operations of Holdings and the subsidiaries to finance working capital needs of the subsidiaries, tax (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04(b) and accounting operations (ii) Indebtedness of the Borrower and the Subsidiaries) shall to any Subsidiary that is not a Subsidiary Loan Party shall, if legally permissible, be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness (including obligations in respect of performance bondsletters of credit and bank guarantees) in respect of performance, bid bondsbid, appeal bonds, and surety bonds and completion guarantees and similar obligations, in each case provided by the Borrower or any of its Subsidiaries in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred services in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or of an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger, consolidation or amalgamation is permitted by this Agreement; provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the assumption and incurrence of any Indebtedness and any related transactions, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 4.25 to 1.00 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(i) (i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the construction, acquisition, lease or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such construction, acquisition, lease or improvement, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases permitted under Section 6.03, would not exceed the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 and any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
Appears in 1 contract
Indebtedness. IncurThe Company will not, nor will it permit any of its Subsidiaries to, create, assume incur or permit suffer to exist any Indebtedness, Indebtedness except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Lenders hereunder and under the other Loan Documents;
(b) Indebtedness created hereunder outstanding on the date hereof including Indebtedness in excess of $1,000,000 that is required to be listed on Schedule 8.12 hereto (including pursuant excluding however, the Indebtedness to Section 2.21be repaid with the proceeds of Loans hereunder, Section 2.22 as indicated on said Schedule 8.12, from and Section 2.23) and under after the other Loan Documents and any Refinancing Notes incurred to Refinance date of such Indebtednessrepayment);
(c) Indebtedness of (i) Subsidiaries of the Borrower Company to the Company, (ii) the Company to any of its Subsidiaries or any Subsidiary pursuant (iii) of Subsidiaries to Hedging Agreements entered into for non-speculative purposesSubsidiaries;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case constituting Capital Lease Obligations incurred in the ordinary course of business Company's or consistent with past practice or industry practicessuch Subsidiaries' business;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower under or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business currency exchange contracts or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental interest rate protection obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(f) Indebtedness in connection with performance bonds or letters of credit obtained and issued in the ordinary course of business, including letters of credit related to insurance associated with claims for work-related injuries;
(g) Subordinated Debt;
(h) Indebtedness incurred to renew, extend, refinance or refund any Indebtedness expressly permitted by any of the clauses of this Section 9.7; and
(i) additional Indebtedness of the Company and its Subsidiaries, including Indebtedness incurred to finance the construction of manufacturing facilities and the acquisition of the equipment for the Genzyme Tissue Repair Division and for Genzyme (UK) Limited, up to but not exceeding $35,000,000 at any one time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Genzyme Corp)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Original Closing Date and set forth on Schedule 6.01 to the Existing Credit Agreement (provided, that any such Indebtedness that is owed to (i) intercompany Indebtedness and (ii) any person other than the Borrower and/or one or more of its Subsidiaries, Indebtedness in an aggregate amount in excess of not to exceed $5,000,000 50.0 million shall be set forth in excluded from Schedule 6.016.01 to the Existing Credit Agreement) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that person who is not a Loan Party shall be subordinated in right an Affiliate of payment to the same extent required pursuant to Section 6.01(eIntermediate Holdings or any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.232.20) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or Intermediate Holdings and any Subsidiary pursuant to Hedging Swap Agreements (excluding any Swap Agreements entered into for non-speculative purposes);
(d) Indebtedness of Intermediate Holdings or any Subsidiary owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Intermediate Holdings or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided, that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of Intermediate Holdings or any Subsidiary to the Borrower Intermediate Holdings or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (that, other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting management operations of the Borrower Intermediate Holdings and the Subsidiaries to finance working capital needs of the Subsidiaries, (i) shall be subordinated in right Indebtedness of payment any Subsidiary that is not a Loan Party owing to the Loan Parties shall be subject to Section 6.04 and (ii) Indebtedness of any Borrower to Intermediate Holdings or any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Loan Party (the “Subordinated Intercompany Debt”) shall, if legally permissible, be subordinated to the Loan Document Obligations under this Agreement and the Guarantees of the Loan Document Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness of Intermediate Holdings or any Subsidiary in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided, that (x) such Indebtedness (other than credit or purchase cards) is extinguished within ten (10) Business Days of notification to Intermediate Holdings or the applicable Subsidiary of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Original Closing Date or an entity merged into or consolidated or amalgamated with Intermediate Holdings or any Subsidiary after the Original Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, amalgamation or consolidation, the assumption and incurrence of any Indebtedness and any related transactions, the First Lien Leverage Ratio on a Pro Forma Basis shall not be greater than 4.5 to 1.00;
(i) (i) Capital Lease Obligations, mortgage financings and other purchase money Indebtedness incurred by Intermediate Holdings or any Subsidiary prior to or within 270 days after any acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) otherwise permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, (A) in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof (together with the aggregate amount of any other Indebtedness outstanding pursuant to this clause (A) and any Permitted Refinancing Indebtedness in respect of Indebtedness initially incurred under this clause (A) that is incurred under clause (ii) hereof at any time that the requirements of clause (B) hereof are not satisfied at the time of such incurrence) would not in the aggregate exceed $75.0 million or (B) in any amount, so long as at the time of and after giving effect to the incurrence of such Indebtedness under this clause (B) and the use of proceeds thereof on a Pro Forma Basis, the Payment Conditions are satisfied and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capital Lease Obligations incurred by Intermediate Holdings or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03 and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of Intermediate Holdings or any Subsidiary, in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed $250.0 million;
(i) Indebtedness (including in respect of the First Lien Notes) in an outstanding principal amount not in excess of $1,100.0 million, (ii) Indebtedness (including in respect of the Second Lien Notes) in an outstanding principal amount not in excess of $275.0 million so long as such Indebtedness is either unsecured or secured by Second-Priority Liens on the Collateral and (iii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(m) Guarantees (i) by Intermediate Holdings or any of the Subsidiary Loan Parties of the Indebtedness described in paragraph (l) of this Section 6.01, (ii) by Intermediate Holdings, any Borrower or any Subsidiary Loan Party of any Indebtedness of any Borrower or any Loan Party permitted to be incurred under this Agreement (provided that any Borrower or Loan Party that provides a guarantee of any Notes shall also provide a guarantee of the Obligations), (iii) by Intermediate Holdings, any Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of Intermediate Holdings or any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)), (iv) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party, and (v) by any Subsidiary of Indebtedness of Subsidiaries that are not Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(w) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(t)); provided, that Guarantees by any Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Document Obligations and the Guarantees of the Loan Document Obligations on terms not less favorable to the Lenders than the subordination terms of such other Indebtedness;
(n) Indebtedness arising from agreements of Intermediate Holdings or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case case, incurred or assumed in connection with any Permitted Business Acquisition or the disposition of any business, assets or any Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or any Subsidiary for the purpose of financing such acquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) Indebtedness of Intermediate Holdings or any Subsidiary supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) other Indebtedness incurred by Intermediate Holdings, any Borrower or any Subsidiary Loan Party; provided that (A) at the time of the incurrence of such Indebtedness and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the First Lien Leverage Ratio on a Pro Forma Basis shall not be greater than 4.5 to 1.00; and (ii) Permitted Refinancing Indebtedness in respect thereof;
(s) (i) Indebtedness of Subsidiaries that are not Loan Parties or (ii) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided, that the aggregate principal amount of Indebtedness outstanding under this clause (s), at any one time, shall not exceed $125.0 million;
(t) unsecured Indebtedness in respect of obligations of Intermediate Holdings or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(u) Indebtedness representing deferred compensation to employees of Intermediate Holdings or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness in connection with Permitted Receivables Financings;
(w) Indebtedness after the Original Closing Date of Intermediate Holdings or any Subsidiary incurred (i) under cash management services (including, but not limited to, intraday, ACH and purchasing card/T&E services) and (ii) under lines of credit or overdraft facilities extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by one or more of the Lenders and (in each case) established for the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Overdraft Line may be secured as, but only to the extent permitted by Section 6.02(b) and the Security Documents;
(x) Indebtedness consisting of promissory notes issued by Intermediate Holdings or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Intermediate Holdings or any Parent Entity permitted by Section 6.06;
(y) Indebtedness consisting of obligations of Intermediate Holdings or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder;
(i) other Indebtedness so long as (x) after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof on a Pro Forma Basis the Payment Conditions are satisfied and (y) such Indebtedness is either unsecured or secured by Second-Priority Liens on the Collateral and (ii) Permitted Refinancing Indebtedness in respect thereof;
(aa) Indebtedness in respect of any Letter of Credit Facility (including any letters of credit issued thereunder), in an aggregate principal amount outstanding at any time not to exceed $30.0 million; and
(bb) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (aa) above. For purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness described in Sections 6.01(a) through (bb) but may be permitted in part under any combination thereof and (B) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness described in Sections 6.01(a) through (bb), Intermediate Holdings shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 and will only be required to include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses and such item of Indebtedness shall be treated as having been incurred or existing pursuant to only one of such clauses. In addition, with respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.
Appears in 1 contract
Sources: Amendment Agreement (Momentive Performance Materials Inc.)
Indebtedness. IncurNeither the Borrower nor any of its Subsidiaries will incur, create, assume or permit to exist any Indebtednessindebtedness or liability on account of deposits or advances or any indebtedness for borrowed money or letters of credit issued on behalf of Borrower or any of its Subsidiaries to, or any other indebtedness or liability evidenced by notes, bonds, debentures or similar obligations, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)indebtedness arising hereunder;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 indebtedness in existence on the date hereof and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtednesslisted in Schedule 6.4 hereto;
(c) Indebtedness indebtedness associated with trade payables and short term debt incurred in the ordinary course of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesbusiness;
(d) Indebtedness indebtedness relating to Permitted Liens (other than Term Loan Indebtedness) or composing investments permitted pursuant to Section 6.6;
(e) unsecured indebtedness representing deferred compensation to employees or directors of the Borrower and its Subsidiaries incurred in the ordinary course of business and in an aggregate outstanding amount not to exceed $5,000,000;
(f) indebtedness incurred in the ordinary course of business and owed to (including obligations in respect of letters any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing-house transfers of credit funds;
(g) indebtedness (other than for borrowed money) that may be deemed to exist pursuant to any warranty or bank contractual service obligations, performance, surety, statutory, appeal, bid, payment (other than payment of indebtedness) or completion of performance guarantees or similar instruments for obligations incurred in the benefit ofordinary course of business;
(h) any person providing indebtedness in respect of workers’ compensationcompensation claims, payment obligations in connection with health, disability or other employee benefits types of social security benefits, unemployment or propertyother insurance obligations, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personreclamation and statutory obligations, in each case in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(ei) Term Loan Indebtedness, in an aggregate principal amount not exceeding the Term Loan Maximum Amount, so long as such Indebtedness is subject to the terms and conditions of the Borrower to any Subsidiary and Intercreditor Agreement; and
(j) additional indebtedness of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) of its Subsidiaries in an aggregate principal amount (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of for the Borrower and the all Subsidiaries) shall be subordinated in right of payment not to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;exceed $250,000.00 at any one time outstanding.
Appears in 1 contract
Indebtedness. IncurCreate, createissue, assume incur, assume, become liable in respect of or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that of any such Indebtedness that is owed Loan Party pursuant to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Document;
(b) unsecured Indebtedness created hereunder (including pursuant i) of the Borrower to Section 2.21any Subsidiary Guarantor (provided that such Indebtedness is subordinated to the payment of the Obligations in accordance with the Subordination Provisions and the notes issued in respect thereof have been pledged to the Administrative Agent, Section 2.22 for the benefit of the Secured Parties), (ii) of any Subsidiary Guarantor to the Borrower (provided that such Indebtedness is subordinated to the payment of the Obligations in accordance with the Subordination Provisions and Section 2.23the notes issued in respect thereof have been pledged to the Administrative Agent, for the benefit of the Secured Parties), (iii) of any Subsidiary to the Borrower or any Subsidiary Guarantor (provided that such Indebtedness is subordinated to the payment of the Obligations in accordance with the Subordination Provisions and under the notes issued in respect thereof have been pledged to the Administrative Agent, for the benefit of the Secured Parties), and (iv) of any Subsidiary that is not a Subsidiary Guarantor to any other Loan Documents and any Refinancing Notes incurred Subsidiary (provided that such Indebtedness is subordinated to Refinance such Indebtednessthe payment of the Obligations in accordance with the Subordination Provisions);
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit bankers’ acceptances and bid, performance and surety or bank guarantees appeal bonds, workers’ compensation claims and payment obligations in connection with self-insurance or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personobligations, in each case in the ordinary course of business business, including guarantees or consistent with past practice or industry practices;
(e) Indebtedness obligations of the Borrower with respect to any Subsidiary and letters of any Subsidiary to the Borrower or any other Subsidiary; providedcredit, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred issued in the ordinary course of business business, supporting such obligations;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without (i) shortening the maturity or weighted average life thereof or (ii) increasing the principal amount thereof, other than to pay any customary fees and premiums required to be paid under the terms of the instrument governing such Indebtedness and to pay reasonable expenses incurred in connection with the cash managementsuch refinancing, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentrefunding, renewal or extension);
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(ge) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds funds, so long as such Indebtedness is extinguished within five Business Days of incurrence;
(f) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding;
(g) Hedge Agreements permitted under Section 7.12;
(h) Indebtedness represented by guarantees by the Borrower or any Subsidiary Guarantor of Indebtedness of the Borrower or any Subsidiary otherwise permitted to be incurred under this Agreement, provided that such guarantees are subordinated to the Obligations (and any guarantee thereof) on the same terms as the underlying Indebtedness in respect thereof;
(i) Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets or the Capital Stock of Subsidiaries permitted by this Agreement;
(j) Indebtedness incurred under commercial letters of credit issued for the account of a Group Member in the ordinary course of business (and not for the purpose of, directly or indirectly, incurring Indebtedness or providing credit support or a similar arrangement in respect of Indebtedness), provided that any drawing under any such letter of credit is reimbursed in full within seven days;
(k) Indebtedness of the Borrower or any Subsidiary Guarantor comprising “earn-out” obligations payable in connection with any Permitted Acquisition or Permitted Joint Venture made by the Borrower or such Subsidiary Guarantor in an aggregate amount not to exceed 5.0% of the aggregate consideration paid by the Borrower or such Subsidiary Guarantor in connection with such Permitted Acquisition or Permitted Joint Venture (and any renewals or extensions thereof);
(l) Acquired Indebtedness in an aggregate amount not to exceed $5,000,000;
(m) Indebtedness of the Borrower or any Subsidiary Guarantor, secured on a second priority basis by the Collateral, in an aggregate amount not to exceed $375,000,000 at any one time outstanding, when taken together with any Indebtedness and undrawn Commitments outstanding pursuant to clause (a) of this Section 7.2, provided that (i) any entity providing any guarantee or other cash management servicescredit support in respect of any obligations incurred under this clause (m) shall also be a Subsidiary Guarantor hereunder and (ii) the lenders in respect of such Indebtedness shall have entered into an intercreditor agreement on terms and conditions reasonably satisfactory to the Required Lenders;
(n) Subordinated Debt of the Borrower (and not of any of its Subsidiaries) in an aggregate amount not to exceed $500,000,000 at any one time outstanding and Guarantee Obligations of any Subsidiary Guarantor in respect of such Subordinated Debt, provided that such Guarantee Obligations are subordinated to the Obligations (and any guarantee thereof) on the same terms as such Subordinated Debt;
(o) Non-Recourse Indebtedness in each case incurred an amount for any Permitted Joint Venture not to exceed 65% of the fair market value of the assets owned by such Permitted Joint Venture; and
(p) obligations of the Borrower to repurchase all or a portion of its outstanding Capital Stock from ▇▇▇▇▇ ▇▇▇▇▇▇ pursuant to that certain Lock-in and Put and Call Option Deed dated as of March 17, 2005 (as such deed is in effect as of the ordinary course of business;Closing Date), to the extent such obligations constitute Indebtedness.
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any IndebtednessIndebtedness (other than intercompany Indebtedness incurred in the ordinary course of business and consistent with past practices of Parent and its subsidiaries), except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) belowunder letters of credit) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.016.01(a) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; providedIndebtedness and (ii) Indebtedness under letters of credit existing on the Closing Date and set forth on Schedule 6.01(b), that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party without giving effect to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)extension, renewal or replacement thereof;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of Holdings and the Borrower or any Subsidiary Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Holdings or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in provided that upon the ordinary course incurrence of business or consistent Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the any Borrower to any Subsidiary or other Borrower and of any Subsidiary to the any Borrower or any other Subsidiary; provided, provided that (i) Indebtedness owed by of any Subsidiary that is not a Subsidiary Loan Party to the Loan Parties shall be subject to Section 6.04(b) and (ii) Indebtedness (the “Subordinated Intercompany Debt”) of any Specified Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Loan Party shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to in the Administrative Agentmanner set forth in Exhibit H (it being agreed that such subordination provisions will not restrict the repayment of any such Subordinated Intercompany Debt other than when an Event of Default exists);
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business, provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within three Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a corporation merged into or consolidated with Parent or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness, provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), would not exceed the greater of $25.0 million and 4.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such acquisition, merger or consolidation, such assumption or such incurrence, as applicable, for which financial statements have been delivered pursuant to Section 5.04;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by Holdings or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed the greater of $25.0 million and 4.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by Parent or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness of Parent or any Subsidiary, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of $40.0 million, so long as the holders of any such Indebtedness shall have entered into an intercreditor agreement substantially in the same form as the Senior Note Intercreditor Arrangement;
(l) Indebtedness (i) of Parent under the Senior Notes and the Senior Note Documents in an aggregate principal amount not to exceed $160.0 million and Indebtedness of Parent pursuant to the Permitted Senior Debt Securities issued to refinance same, (ii) of Parent under the Senior Subordinated Notes and the Senior Subordinated Note Documents in an aggregate principal amount not to exceed $125.0 million and Indebtedness of Parent pursuant to the Permitted Senior Subordinated Debt Securities issued to refinance same, (iii) of Holdings under the Investor Financing in aggregate principal amount not to exceed $163.0 million plus the amount of all interest thereon which is paid in kind or paid through accretion or accrual and (iv) of Parent to Holdings resulting from Holdings’ contribution and/or on-lending to Parent of the net proceeds from the Investor Financing, so long as (x) the aggregate principal amount thereof shall not exceed $163.0 million plus the amount of all interest thereon which is paid in kind or paid through accretion or accrual and (y) such Indebtedness is governed by the Parent Investor Financing Documents;
(m) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of Parent described in paragraph (l)(i) and (l)(ii), so long as, in the case of any such Guarantees of the Indebtedness referred to or clause (l)(ii), such Guarantees are subordinated on terms substantially the same as those on which the Senior Subordinated Notes are subordinated to the Obligations as set forth in the Senior Subordinated Note Indenture, (ii) by Parent or any Subsidiary Loan Party of any other Indebtedness of Parent or any Subsidiary Loan Party expressly permitted to be incurred under this Agreement (other than the Investor Financing and the Parent Investor Financing), (iii) by Parent or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Non-Subsidiary Loan Party to the extent permitted by Section 6.04(b), (iv) by any Non-Subsidiary Loan Party of Indebtedness of any other Non-Subsidiary Loan Party subject, however, to Section 6.04(b); provided that all Non-Subsidiary Loan Parties may guarantee obligations of other Non-Subsidiary Loan Parties under ordinary course cash management obligations, and (v) by Parent of Indebtedness of Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(a) or (k); provided that Guarantees by Holdings or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms substantially the same as those on which the Senior Subordinated Notes are subordinated under the Senior Subordinated Note Indenture to the Obligations;
(n) Indebtedness arising from agreements of Holdings or any Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the Transaction or the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(o) Indebtedness in connection with Permitted Receivables Financings; provided that the net proceeds thereof are applied in accordance with Section 2.11(c);
(p) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $10.0 million, so long as the issuers of such letters of credit or bank guarantees shall have entered into an intercreditor agreement substantially in the same form as the Senior Note Intercreditor Arrangement;
(q) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(r) Indebtedness consisting of (x) the financing of insurance premiums or (y) take or pay or similar obligations contained in supply arrangements, in each case incurred in the ordinary course of business;
(s) Indebtedness consisting of Permitted Senior Subordinated Debt Securities (as provided for in clause (y) of the definition thereof) to the extent the Net Proceeds in respect thereof are actually utilized to repay Term Loan Borrowings, provided that the Net Proceeds of any Permitted Senior Subordinated Debt Securities may be used to finance (in whole or in part) a Permitted Business Acquisition instead of being used to repay Term Loan Borrowings (provided, further, that the aggregate outstanding principal amount of Permitted Senior Subordinated Debt Securities used as set forth in the immediately preceding proviso shall not exceed $50.0 million unless, at the time of consummation of any Permitted Business Acquisition, the Total Leverage Ratio is equal to or less than 5.0:1.0 determined on a Pro Forma Basis after giving effect to such Permitted Business Acquisition and the incurrence of all Permitted Senior Subordinated Debt Securities (and all other Indebtedness) the proceeds of which are used to finance such Permitted Business Acquisition;
(t) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (s) above;
(u) Indebtedness incurred on behalf of or representing Guarantees of Indebtedness of joint ventures not in excess of, when added to the amount of all Investments in joint ventures made pursuant to Section 6.04(s), $20.0 million at any time outstanding, so long as the holders of any such Indebtedness shall have entered into an intercreditor agreement substantially in the same form as the Senior Note Intercreditor Arrangement; and
(v) Indebtedness of Subsidiaries which are not Loan Parties for working capital purposes incurred in the ordinary course of business on ordinary business terms in an aggregate principal amount not to exceed $10.0 million, so long as the holders of any such Indebtedness shall have entered into an intercreditor agreement substantially in the same form as the Senior Note Intercreditor Arrangement. Notwithstanding anything to the contrary herein, Holdings shall not be permitted to incur any Indebtedness other than Indebtedness under Sections 6.01(b), (l)(iii) and (m).
Appears in 1 contract
Sources: Credit Agreement (New Skies Satellites Holdings Ltd.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary Subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eBorrower);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary and its Relevant Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.12;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any SubsidiaryRelevant Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such personPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, in each case in the ordinary course of business or consistent with past practice or industry practicessuch obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to or any Relevant Subsidiary and of any Subsidiary owing to the Borrower or any other Subsidiary; providedSubsidiary of the Borrower to the extent permitted by Section 6.04, provided that Indebtedness owed by of any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) Loan Party (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligationsobligations (including, without limitation guarantees of the West Virginia Department of Highways Bonds described on Schedule 3.13 to the Acquisition Agreement or similar highway bonds), in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business, provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Relevant Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Relevant Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger, amalgamation or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness, provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), would not exceed the greater of U.S. $15.0 million and 5.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such acquisition, merger, amalgamation or consolidation, such assumption or such incurrence, as applicable, for which financial statements have been delivered pursuant to Section 5.04;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Relevant Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed the greater of U.S. $15.0 million and 5.5% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by the Borrower or any Relevant Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness, in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(k) not in excess of the greater of U.S. $15.0 million and 5.5% of Consolidated Total Assets;
(l) Guarantees (i) by any Loan Party of any Indebtedness of the Borrower or any other Loan Party expressly permitted to be incurred under this Agreement, (ii) by the Borrower or any Relevant Subsidiary of Indebtedness of any Subsidiary that is not a Loan Party to the extent permitted by Section 6.04, (iii) by any Relevant Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party and (iv) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(k) or (p); provided that Guarantees by any Loan Party under this Section 6.01(l) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to be used, for Subordinated Intercompany Debt;
(m) Indebtedness arising from agreements of the Borrower or any Relevant Subsidiary of the Borrower providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(n) Indebtedness supported by a Revolving Letter of Credit, in a principal amount not in excess of the stated amount of such Revolving Letter of Credit;
(o) Indebtedness of Relevant Subsidiaries that are Foreign Subsidiaries (including letters of credit or bank guarantees (other than Revolving Letters of Credit issued pursuant to Section 2.05) for working capital purposes incurred in the ordinary course of businessbusiness on ordinary business terms in an aggregate amount not to exceed the greater of U.S. $5.0 million and 1% of Consolidated Total Assets outstanding at any time);
(p) (i) Indebtedness incurred and/or assumed in connection with Section 6.04(j); provided that the aggregate amount of such Indebtedness outstanding pursuant to this Section 6.01(p) shall not exceed U.S. $20.0 million and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtdness; and
(q) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (q) above.
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(ai) Indebtedness existing or committed, or incurred pursuant to facilities existing or committed, on the Closing Date (and contemplated to be existing on the Closing Date under the Business Combination Agreement) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, provided that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $1,000,000 individually and $5,000,000 in the aggregate shall only be permitted under this clause (a) to the extent such Indebtedness is set forth in on Schedule 6.016.01 to the Original Credit Agreement) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower or any Subsidiary) or, without duplication, replacements of such facilities that is not a Loan Party shall would constitute Permitted Refinancing Indebtedness with respect to such facilities if all Indebtedness available to be subordinated in right incurred thereunder were outstanding on the date of payment to the same extent required pursuant to Section 6.01(e)such replacement;
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.232.20) and under the other Loan Documents and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary and the Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposes;
(d) Indebtedness of the Borrower and the Subsidiaries owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings, the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case case, provided in the ordinary course of business or consistent with past practice practices or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, provided that (i) Indebtedness owed by any Loan Party to of any Subsidiary that is not a Guarantor Subsidiary Loan Party owing to Holdings, the Borrower or any Subsidiary Loan Party incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04, and (ii) other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of Holdings, the Borrower and the Subsidiaries, all Indebtedness of the Borrower to any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Subsidiary Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit H to the Original Credit Agreement, on subordination terms identical to those described in the intercompany note or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
Appears in 1 contract
Sources: First Amendment to First Lien Credit Agreement (Exela Technologies, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesSwap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (that, other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash managementmanagement operations of Holdings and the subsidiaries to finance working capital needs of the subsidiaries, tax (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04(b) and accounting operations (ii) Indebtedness of the Borrower and the Subsidiaries) shall to any Subsidiary that is not a Subsidiary Loan Party shall, if legally permissible, be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness (including obligations in respect of performance bondsletters of credit and bank guarantees) in respect of performance, bid bondsbid, appeal bonds, and surety bonds and completion guarantees and similar obligations, in each case provided by the Borrower or any of its Subsidiaries in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred services in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or of an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger, consolidation or amalgamation is permitted by this Agreement; provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the assumption and incurrence of any Indebtedness and any related transactions, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 4.25 to 1.00 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(i) (i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the construction, acquisition, lease or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such construction, acquisition, lease or improvement, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases permitted under Section 6.03, would not exceed the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease‑Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 and any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
Appears in 1 contract
Indebtedness. IncurThe Administrative Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit otherwise become liable with respect to exist any Indebtedness, except:
(a) the Secured Obligations (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that including any such Indebtedness that is owed to Additional Term Loans and any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eAdditional Revolving Loans);
(b) Indebtedness created hereunder (including pursuant of the Administrative Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Administrative Borrower and/or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Loan Party, such Indebtedness is permitted as an Investment under Section 2.216.06; provided, Section 2.22 further, that any Indebtedness of any Loan Party owing to any Restricted Subsidiary that is not a Loan Party must be unsecured and Section 2.23) and under expressly subordinated to the other Obligations of such Loan Documents and any Refinancing Notes incurred Party on terms that are reasonably acceptable to Refinance such Indebtednessthe Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes[Reserved];
(d) Indebtedness owed to arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including obligations contingent earn-out obligations) incurred in respect connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock permitted hereunder, and Indebtedness arising from guaranties, letters of credit or credit, bank guarantees guaranties, surety bonds, performance bonds or similar instruments for securing the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to performance of the Administrative Borrower or any Subsidiary, such Restricted Subsidiary pursuant to reimbursement or indemnification obligations to any such person, in each case in the ordinary course of business or consistent with past practice or industry practicesagreement;
(e) Indebtedness of the Administrative Borrower to and/or any Restricted Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred (i) pursuant to this Section 6.01(etenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(other than intercompany current liabilities f) Indebtedness of the Administrative Borrower and/or any Restricted Subsidiary in respect of Banking Services, including Banking Services Obligations, and incentive, supplier finance or similar programs;
(i) guaranties by the Administrative Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Administrative Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with the cash management, tax such goods and accounting operations of the Borrower services and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(fiii) Indebtedness in respect of performance bondsletters of credit, bid bondsbankers’ acceptances, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft guaranties or similar instrument drawn against insufficient funds in the ordinary course of business instruments supporting trade payables, warehouse receipts or other cash management services, in each case incurred similar facilities entered into in the ordinary course of business;
(h) Guarantees by the Administrative Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Administrative Borrower, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Administrative Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, in the case of any such Indebtedness with an aggregate outstanding principal amount in excess of $10,000,000, described on Schedule 6.01;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $145,000,000 and 20% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Administrative Borrower and/or any Restricted Subsidiary consisting of obligations owing under supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Administrative Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Administrative Borrower and/or any Restricted Subsidiary with respect to (i) Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $145,000,000 and 20% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and (ii) any Capital Lease or purchase money Indebtedness to finance the purchase or lease of any vehicle (including any vehicle lease assumed in connection with an acquisition permitted hereunder and any vehicle lease of any Person that becomes a Restricted Subsidiary in connection with an acquisition permitted hereunder);
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and (ii) either (A) (x) no Event of Default under Sections 7.01(a), (f) or (g) exists or would result from the consummation of such acquisition and (y) such Person is in compliance with either, at the election of the Administrative Borrower, (1) (I) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, a First Lien Leverage Ratio not to exceed the First Lien Leverage Ratio as of the last day of the most recently ended Test Period, (II) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, a Secured Leverage Ratio not to exceed the Secured Leverage Ratio as of the last day of the most recently ended Test Period or (III) if such Indebtedness is unsecured or is secured by assets that do not constitute Collateral, at the election of the Administrative Borrower, either (x) a Total Leverage Ratio not to exceed the Total Leverage Ratio as of the last day of the most recently ended Test Period or (y) an Interest Coverage Ratio not less than the Interest Coverage Ratio as of the last day of the most recently ended Test Period or (2) Section 6.13(a), whether or not then in effect, in either case, calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period or (B) the aggregate outstanding amount of Indebtedness assumed in reliance on this Section 6.01(n)(ii)(B) does not exceed the greater of $145,000,000 and 20% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness consisting of promissory notes issued by the Administrative Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Administrative Borrower or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) the Administrative Borrower and its Restricted Subsidiaries may become and remain liable for any Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (r), (u), (w), (y) and (z) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Refinancing Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest and premiums (including tender premiums) thereon plus underwriting discounts and other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this Section 6.01(p) (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Refinancing Indebtedness is permitted under Section 6.02),
(ii) in the case of Refinancing Indebtedness with respect to clauses (a), (q), (r), (w) and (z) (other than Customary Bridge Loans), such Refinancing Indebtedness has (A) a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced, it being understood and agreed that, notwithstanding the foregoing, with respect to any refinancing of Indebtedness incurred in reliance on Section 6.01(a), any Indebtedness in the form of Customary Term B Loans, including any Initial Term B Loan, may be refinanced with the proceeds of one or more Customary Term A Loans so long as such Customary Term A Loans have (1) a final maturity equal to or later than the final maturity of the Initial Term A Loans and (2) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Initial Term A Loans,
(iii) the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (other than Indebtedness of the type described in Section 6.01(m)) (excluding pricing, fees, premiums, rate floors, optional prepayment or redemption terms (and, if applicable, subordination terms) and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, security), are not, taken as a whole (as reasonably determined by the Administrative Borrower), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenant or other provision applicable only to periods after the applicable maturity date of the debt then-being refinanced as of such date, (B) any covenant or provision which constitute then-current market terms for the applicable type of Indebtedness or (C) any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)),
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n) (solely as it relates to amounts incurred pursuant to clause (ii)(B) of the proviso thereto), (r), (u), (w) (solely as it relates to the Non-Loan Party Cap), (y) and (z) (solely as it relates to the Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amount outstanding in reliance on (and such Refinancing Indebtedness shall constitute utilization of amounts set forth in) the applicable clause of this Section 6.01,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) or (z) of this Section 6.01, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), (B) such Refinancing Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was originally contractually subordinated to the Obligations in right of payment (or the Liens securing such Indebtedness were originally contractually subordinated to the Liens on all or a portion of the Collateral securing the Initial Term Loans), such Refinancing Indebtedness is contractually subordinated to the Obligations in right of payment (or the Liens securing such Refinancing Indebtedness are subordinated to the Liens on the relevant Collateral securing the Initial Term Loans) on terms not materially less favorable (as reasonably determined by the Administrative Borrower), taken as a whole, to the Lenders than those applicable to the Indebtedness (or Liens, as applicable) being refinanced, refunded or replaced, taken as a whole, and (D) as of the date of the incurrence of any such Refinancing Indebtedness and after giving effect thereto, no Event of Default exists,
(vi) in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) or (z) of this Section 6.01, (A) such Refinancing Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral or that is junior in right of payment shall be subject to an applicable Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than one or more Loan Parties and (D) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement; it being understood and agreed that any such Refinancing Indebtedness may participate (x) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi), and
(vii) in the case of Refinancing Indebtedness with respect to intercompany Indebtedness permitted under Section 6.01(i), such Refinancing Indebtedness also constitutes intercompany Indebtedness;
(q) Indebtedness incurred to finance any acquisition permitted hereunder after the Closing Date; provided that:
(i) before and after giving effect to such acquisition on a Pro Forma Basis, no Event of Default under Sections 7.01(a), (f) or (g) exists,
(ii) after giving effect to such acquisition on a Pro Forma Basis (in each case, without “netting” the cash proceeds of the applicable Indebtedness being incurred):
(A) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the First Lien Leverage Ratio does not exceed the greater of (x) 3.50:1.00 and (y) the First Lien Leverage Ratio as of the last day of the most recently ended Test Period,
(B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Se
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.016.01 to the Original Credit Agreement) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J to the Original Credit Agreement or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (w) in the case of any such Indebtedness secured by Liens on Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.10 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (x) in the case of any such Indebtedness secured by Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.60 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of any other such Indebtedness, the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not less than 2.00 to 1.00 or (II) no less than the Interest Coverage Ratio in effect immediately prior thereto and (z) in the case of any such Indebtedness incurred under this clause (h) by a Subsidiary other than a Subsidiary Loan Party that is incurred in contemplation of such acquisition, merger or consolidation, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation shall be subject to the last paragraph of this Section 6.01 and the incurrence (but not assumption) of any such term loan Indebtedness that is secured by Other First Liens shall be subject to the last paragraph of Section 6.02; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, installation, maintenance, service, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, maintenance, service, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $300,000,000 and 0.35 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (ii) Indebtedness (including Capitalized Lease Obligations) incurred by the Borrower or any Subsidiary to finance (whether prior to or within 270 days after) the acquisition, lease, construction, installation, maintenance, service, repair, replacement or improvement of property (real or personal), computer equipment (including servers), storage equipment, networking equipment or other equipment or assets used or useful in the business of the Borrower and its Subsidiaries and any finance lease obligations not prohibited hereunder and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03, (ii) Capitalized Lease Obligations or other obligations or deferrals attributable to capital spending and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $425,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions or Permitted Cure Securities;
(m) Guarantees by the Borrower or any Subsidiary of any Indebtedness of the Borrower or any Subsidiary permitted to be incurred under this Agreement; provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) [reserved];
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.10 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) shall be subject to the last paragraph of this Section 6.01 and the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) in the form of term loans shall be subject to the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 3.60 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $250,000,000 and 0.30 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time; provided that the incurrence of any Indebtedness for borrowed money pursuant to this clause (z)(i) shall be subject to the last paragraph of Section 6.01 and the incurrence of any Indebtedness for borrowed money secured by Liens on Collateral that are Other First Liens pursuant to this clause (z)(i) in the form of term loans shall be subject to the last paragraph of Section 6.02 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) [reserved];
(i) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $425,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees thereof or of Holdings or any Parent Entity, their respective estates, spouses or former spouses to finance the purchase or redemptio
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Rackspace Technology, Inc.)
Indebtedness. IncurThe Borrower will not, nor will it permit any Subsidiary to, create, assume incur or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (The Loans and any other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Obligations;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 existing on the Restatement Date and Section 2.23) and under the other Loan Documents described in Schedule 6.17 and any Refinancing Notes incurred to Refinance renewal or extension of such IndebtednessIndebtedness that does not increase the principal amount thereof;
(c) Indebtedness of incurred in connection with the Borrower or any Subsidiary Permitted Earn-Out Payments permitted to be made pursuant to Hedging Agreements entered into for non-speculative purposesthe terms of Section 6.29(b);
(d) Indebtedness owed secured by Liens permitted by Section 6.22(h) and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Indebtedness at any time outstanding shall not exceed $35,000,000;
(e) Subordinated Indebtedness;
(f) Indebtedness arising under Rate Management Transactions or other Financial Contracts incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation, evidence of which has been provided to the Administrative Agent;
(including g) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 6.19(c);
(h) Indebtedness incurred in respect of letters netting services and ordinary course of credit or bank guarantees or similar instruments for business overdraft protection in connection with deposit accounts permitted under the benefit ofLoan Documents;
(i) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability Indebtedness incurred in connection with the financing of insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case premiums in the ordinary course of business or consistent with past practice or industry practices(“Financed Premiums”);
(ej) Indebtedness Endorsements for collection or deposit and standard contractual indemnities entered into in the ordinary course of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(ebusiness;
(k) (other than intercompany current liabilities Contingent Obligations incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations;
(l) Contingent Obligations arising under indemnity agreements to title insurers to cause such title insurers to issue to the Administrative Agent title insurance policies;
(m) Contingent Obligations related to guaranty obligations of the Borrower or any of its Subsidiaries with respect to Operating Leases of the Borrower’s Domestic Subsidiaries for terminal facilities and other contract obligations (other than Indebtedness) of the Borrower’s Domestic Subsidiaries not prohibited by this Agreement so long as the same remains Contingent Obligations;
(n) Contingent Obligations arising with respect to customary indemnification obligations in favor sellers in connection with the cash management, tax and accounting operations Permitted Acquisitions;
(o) Indebtedness or Contingent Obligations related to co-borrower or guaranty obligations of the Borrower and or its Subsidiaries with respect to loans obtained by independent contractors of the Subsidiaries) Borrower or its Subsidiaries for the purpose of such independent contractor acquiring trucks or trailers; provided that the aggregate amount of all such Indebtedness or Contingent Obligations, together with the aggregate amount of Investments permitted under Section 6.20(j), shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentnot exceed $15,000,000 at any one time outstanding;
(fp) Intercompany Indebtedness owing (i) from a Domestic Subsidiary that is a Guarantor to the Borrower, (ii) from a Domestic Subsidiary that is a Guarantor to another Domestic Subsidiary that is a Guarantor or (iii) from a Foreign Subsidiary (including Midwest Transit) to Borrower or any Domestic Subsidiary that is a Guarantor in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, an amount not to exceed $5,000,000 at any one time outstanding for all such intercompany Indebtedness described in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;this clause (iii); and
(gq) Other Indebtedness arising from (excluding any Indebtedness described in clauses (b) through (p) above), provided that the honoring by a bank or aggregate amount of such other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;Indebtedness does not exceed $10,000,000 at any time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Roadrunner Transportation Systems, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (x) in the case of any such Indebtedness secured by Liens on Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 4.25 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (y) in the case of any such Indebtedness secured by Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 5.75 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto and (z) in the case of any other such Indebtedness, the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, amalgamation or Investment, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not less than 2.00 to 1.00 or (II) no less than the Interest Coverage Ratio in effect immediately prior thereto and (z) in the case of any such Indebtedness incurred under this clause (h) by a Subsidiary other than a Subsidiary Loan Party that is incurred in contemplation of such acquisition, merger or consolidation, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed when taken together with the aggregate principal amount of other Indebtedness outstanding pursuant to this Section 6.01(h)(i), 6.01(q)(i), Section 6.01(r)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than Subsidiary Loan Parties, the greater of $75,000,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation shall be subject to the last paragraph of this Section 6.01 and the incurrence (but not assumption) of any such term loan Indebtedness that is secured by Other First Liens shall be subject to the last paragraph of Section 6.02; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, installation, maintenance, service, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, maintenance, service, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed (A) the greater of $105,000,000 and 0.35 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period plus (B) any additional amounts, so long as immediately after giving effect to the incurrence of such additional amounts under this clause (B) and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 4.25 to 1.00 (assuming, for purposes of this clause (B), that all Capitalized Lease Obligations incurred by the Borrower and the Subsidiaries incurred pursuant to this clause (B) outstanding at such time are included as Consolidated Debt in such calculation of the Net First Lien Leverage Ratio), and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03 and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $240,000,000 and 0.80 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions;
(m) Guarantees by the Borrower or any Subsidiary of any Indebtedness of the Borrower or any Subsidiary permitted to be incurred under this Agreement; provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) [reserved];
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 4.25 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(h)(i), Section 6.01(r)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $75,000,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) shall be subject to the last paragraph of this Section 6.01 and the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) in the form of term loans shall be subject to the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 5.75 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(r)(i), Section 6.01(h)(i), Section 6.01(q)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $75,000,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(s)(i), Section 6.01(h)(i), Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(z)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $75,000,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $75,000,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) (i) Indebtedness incurred pursuant to Permitted Securitization Financings, (ii) Indebtedness incurred pursuant to other factoring, securitizations, receivables sales, receivables financings or similar arrangements in an aggregate principal amount, which when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (w)(ii), does not exceed the greater of $30,000,000 and 0.10 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(x) obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time; provided that the incurrence of any Indebtedness for borrowed money pursuant to this clause (z)(i) shall be subject to the last paragraph of Section 6.01 and the incurrence of any Indebtedness for borrowed money secured by Liens on Collateral that are Other First Liens pursuant to this clause (z)(i) in the form of term loans shall be subject to the last paragraph of Section 6.02 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) [reserved];
(i) Indebtedness of, incurred on behalf of, or representing
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness of any Loan Party or Subsidiary (other than as described in Section 6.01(b) belowRadisson France) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to (other than intercompany indebtedness Refinanced with Indebtedness not meeting the requirements set forth in paragraph (e) of this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e6.01);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower any Loan Party or any Material Subsidiary pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.10;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower any Loan Party or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party or Subsidiary to any other Loan Party or Subsidiary (including intercompany loans permitted under Section 6.04); provided that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than any such intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Indebtedness shall be subordinated in right of payment made expressly subject to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;Global Intercompany Note or another note containing identical subordination provisions.
(f) (i) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business and (ii) ordinary course Guarantees and any related credit support or consistent with past practice suretyship arrangements so long as the same do not constitute indebtedness for borrowed money or industry practicesa Guarantee thereof;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of notification to the obligor by such bank or other financial institution of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(h) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by any Loan Party or any Subsidiary (other than Radisson France) prior to or within 270 days after the acquisition, lease or improvement of the respective asset (other than any Collateral) permitted under this Agreement in order to finance such acquisition, lease or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount outstanding at any one time not to exceed $3,000,000;
(i) Indebtedness of the Borrowers consisting of (i) Second Lien Obligations in an aggregate principal amount not in excess of $200,000,000 (subject to increase as provided in Section 6.09(d)(i)), and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness; provided that (a) the terms and conditions of such Permitted Refinancing Indebtedness shall be no less favorable in the aggregate to the Borrowers and the other Loan Parties and to the Lenders than the terms and conditions of the Second Lien Obligations then outstanding (or the terms and conditions that could be applicable after giving effect to the adverse modifications to Second Lien Obligations permitted under Section 6.09(d) below) (or in the event such terms and conditions are less favorable, the Loan Documents shall automatically be amended to include such terms and conditions, and any approval necessary to effect such amendment or other modification under Section 10.08 is hereby deemed to be granted), (b) the final maturity and the average life to maturity of such Permitted Refinancing Indebtedness shall be at least equal to that of the Second Lien Obligations then outstanding, and (c) if such Permitted Refinancing Indebtedness is secured, the holders of such Permitted Refinancing Indebtedness, or a duly authorized agent on their behalf, agree in writing to be bound by the terms of the Intercreditor Agreement or another intercreditor agreement substantially consistent with or no less favorable to the Lenders in any material respect than the Intercreditor Agreement;
(j) Guarantees (i) by any Loan Party (other than Radisson France) of the Indebtedness of the Borrowers described in paragraph (i) of this Section 6.01, so long as any Liens securing the Guarantee of Second Lien Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the Intercreditor Agreement or another intercreditor agreement substantially consistent with or no less favorable to the Lenders in any material respect than the Intercreditor Agreement, (ii) by any Loan Party (other than Radisson France) of any Indebtedness of any other Loan Party permitted to be incurred under this Agreement, (iii) by any Loan Party (other than Radisson France) of Indebtedness otherwise permitted hereunder of Holdings or any Subsidiary that is not a Loan Party to the extent such Guarantees are permitted by Section 6.04(x), and (iv) by any Subsidiary (other than a Subsidiary Borrower) of any Indebtedness of any other Subsidiary or any Loan Party permitted to be incurred under this Agreement; provided that Guarantees by any Loan Party or Subsidiary under this Section 6.01(j) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to the same extent as such underlying Indebtedness is subordinated;
(k) Indebtedness arising from agreements of any Loan Party or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case case, incurred or assumed in connection with (i) the Transactions or (ii) the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that Radisson France shall not be permitted to incur Indebtedness under the foregoing clause (ii);
(l) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(m) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(n) Indebtedness consisting of payment of insurance premiums on a deferred basis, take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(o) unsecured Indebtedness in respect of obligations of any Loan Party or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(p) Indebtedness representing deferred compensation to employees of any Loan Party or any Subsidiary incurred in the ordinary course of business;
(q) Indebtedness of any New Vessel Subsidiary under a New Vessel Financing (in an initial aggregate principal amount not to exceed 80% of the purchase price (as adjusted from time to time to give effect to any change orders or other modifications) of the purchased Vessel and 100% of any related export credit insurance premium) and Guarantees thereof by CCH; provided, however, that any such Guarantee shall be limited to CCH’s availability of funds other than amounts attributable to its direct or indirect ownership of Radisson France and other than amounts payable by Radisson France to CCH under the CCH-Radisson France Instrument or under any Indebtedness owing from Radisson France to CCH;
(r) Indebtedness of any Loan Party or Subsidiary (other than Radisson France), or a Guarantee by any Loan Party or Subsidiary (other than Radisson France) of Indebtedness, that (i) has a stated maturity not earlier than 91 days following the Second Lien Maturity Date (as in effect on the date of the issuance, incurrence or assumption of such Indebtedness or Guarantee, as the case may be) and (ii) is subordinated to the Obligations pursuant to documentation including subordination provisions no less favorable to the Lenders than those set forth in Exhibit M-1 (with such changes thereto as the Administrative Agent may approve in its sole discretion), so long as no Default shall have occurred and be continuing as of the date of the issuance, incurrence or assumption of such Indebtedness or Guarantee, as the case may be, or would result therefrom;
(s) Indebtedness of CCH, or a Guarantee by CCH of Indebtedness, that (i) has a stated maturity not earlier than 91 days following the Second Lien Maturity Date (as in effect on the date of the issuance, incurrence or assumption of such Indebtedness or Guarantee, as the case may be) and (ii) is subordinated to the Obligations pursuant to documentation including subordination provisions no less favorable to the Lenders than those set forth in Exhibit M-2 (with such changes thereto as the Administrative Agent may approve in its sole discretion), so long as (x) no Default shall have occurred and be continuing as of the date of the issuance, incurrence or assumption of such Indebtedness or Guarantee, as the case may be, or would result therefrom, and (y) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness or Guarantee, as the case may be, the Adjusted Leverage Ratio (determined as of the date of the issuance, incurrence or assumption of such Indebtedness or Guarantee, as the case may be) shall not be greater than 5.00 to 1.00;
(t) other Indebtedness of the Borrowers (other than Radisson France) or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed $3,000,000; and
(u) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (t) above.
Appears in 1 contract
Sources: Credit Agreement (Mariner, LLC)
Indebtedness. IncurEach of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)The Obligations;
(b) Indebtedness created hereunder (including pursuant i) of a Loan Party to another Loan Party, (ii) of a Loan Party to any wholly owned Subsidiary of a Loan Party, or (iii) of any Foreign Subsidiary to another Foreign Subsidiary, which is, in any case, subordinated in accordance with the provisions of Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness7.11;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiaryinsurance, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentbusiness;
(fd) Indebtedness owed to any Person in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business business;
(e) Indebtedness of the Borrower’s Foreign Subsidiaries and any Guaranty by the Borrower or consistent with past practice or industry practicesany Subsidiary of such Indebtedness;
(f) unsecured Indebtedness of the Borrower to First National Bank of Pennsylvania evidenced by the Demand Note; provided, including those incurred that the form of Demand Note is acceptable to secure health, safety and environmental obligations the Agent in the ordinary course exercise of business or consistent with past practice or industry practices;its reasonable discretion; and
(g) any other existing Indebtedness arising from as set forth on Schedule 8.1 (including any extensions or renewals thereof), together with, without duplication, any Guarantees, Capital Lease Obligations, Purchase Money Security Interests and other Indebtedness (including in respect of letters of credit) incurred after the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;Closing Date.
Appears in 1 contract
Indebtedness. IncurThe Borrower will not, nor will it permit any Subsidiary to, create, assume incur or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (The Loans and any other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Obligations;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 existing on the Restatement Date and Section 2.23) and under the other Loan Documents described in Schedule 6.17 and any Refinancing Notes incurred to Refinance renewal or extension of such IndebtednessIndebtedness that does not increase the principal amount thereof;
(c) Indebtedness of incurred in connection with the Borrower or any Subsidiary Permitted Earn-Out Payments permitted to be made pursuant to Hedging Agreements entered into for non-speculative purposesthe terms of Section 6.29(b);
(d) Indebtedness owed secured by Liens permitted by Section 6.22(h) and extensions, renewals and refinancings thereof; provided that the aggregate amount of all such Indebtedness at any time outstanding shall not exceed $15,000,000;
(e) Subordinated Indebtedness;
(f) Indebtedness arising under Rate Management Transactions or other Financial Contracts incurred in favor of a Lender or an Affiliate thereof for bona fide hedging purposes and not for speculation, evidence of which has been provided to the Administrative Agent;
(including g) Contingent Obligations arising with respect to customary indemnification obligations in favor of purchasers in connection with dispositions permitted under Section 6.19(c);
(h) Indebtedness incurred in respect of letters netting services and ordinary course of credit or bank guarantees or similar instruments for business overdraft protection in connection with deposit accounts permitted under the benefit ofLoan Documents;
(i) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability Indebtedness incurred in connection with the financing of insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case premiums in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(ej) Indebtedness Endorsements for collection or deposit and standard contractual indemnities entered into in the ordinary course of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(ebusiness;
(k) (other than intercompany current liabilities Contingent Obligations incurred in the ordinary course of business with respect to surety and appeal bonds, performance bonds and other similar obligations;
(l) Contingent Obligations arising under indemnity agreements to title insurers to cause such title insurers to issue to the Administrative Agent title insurance policies;
(m) Contingent Obligations related to guaranty obligations of the Borrower or any of its Subsidiaries with respect to Operating Leases of the Borrower’s Domestic Subsidiaries for terminal facilities and other contract obligations (other than Indebtedness) of the Borrower’s Domestic Subsidiaries not prohibited by this Agreement so long as the same remains Contingent Obligations;
(n) Contingent Obligations arising with respect to customary indemnification obligations in favor sellers in connection with the cash management, tax and accounting operations Permitted Acquisitions;
(o) Indebtedness or Contingent Obligations related to co-borrower or guaranty obligations of the Borrower and or its Subsidiaries with respect to loans obtained by independent contractors of the Subsidiaries) Borrower or its Subsidiaries for the purpose of such independent contractor acquiring trucks or trailers; provided that the aggregate amount of all such Indebtedness or Contingent Obligations, together with the aggregate amount of Investments permitted under Section 6.20(j), shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentnot exceed $15,000,000 at any one time outstanding;
(fp) Intercompany Indebtedness owing (i) from a Domestic Subsidiary that is a Guarantor to the Borrower, (ii) from a Domestic Subsidiary that is a Guarantor to another Domestic Subsidiary that is a Guarantor or (iii) from a Foreign Subsidiary (including Midwest Transit) to Borrower or any Domestic Subsidiary that is a Guarantor in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, an amount not to exceed $5,000,000 at any one time outstanding for all such intercompany Indebtedness described in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;this clause (iii); and
(gq) Other Indebtedness arising from (excluding any Indebtedness described in clauses (b) through (p) above), provided that the honoring by a bank or aggregate amount of such other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;Indebtedness does not exceed $10,000,000 at any time outstanding.
Appears in 1 contract
Sources: Credit Agreement (Roadrunner Transportation Systems, Inc.)
Indebtedness. IncurThe Borrower shall not, createand shall not permit any other Restricted Person to, assume in any manner owe or permit to exist any Indebtedness, exceptbe liable for Indebtedness except for the following:
(a) the Obligations;
(xb) Indebtedness of any Restricted Person (other than as described in Section 6.01(bETP GP, ETP LLC, Regency GP and Regency LLC) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other Restricted Person (other than the Borrower and/or one or more of its SubsidiariesETP GP, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) ETP LLC, Regency GP and (y) any Permitted Refinancing Indebtedness incurred to Refinance such IndebtednessRegency LLC); provided, that any (i) all such Indebtedness outstanding shall be evidenced by promissory notes and all such notes shall be subject to a first priority Lien pursuant to this clause the Pledge and Security Agreement, (aii) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party all such Indebtedness shall be unsecured and subordinated in right of payment to the same extent required payment in full of the Obligations pursuant to Section 6.01(e);
the terms of the applicable promissory notes or an intercompany subordination agreement that in any such case is reasonably satisfactory to the Administrative Agent, and (biii) any payment by any Restricted Person that is a Guarantor under any guaranty of the Obligations shall result in a pro rata reduction of the amount of any such Indebtedness created hereunder (including pursuant owed by such Guarantor to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and Borrower or to any Refinancing Notes incurred to Refinance Restricted Subsidiary that is a Guarantor for whose benefit such Indebtednesspayment is made;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, bonds that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of are performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent business;
(d) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with past practice or industry practicesdeposit accounts;
(e) Indebtedness of (i) ETP LLC arising by operation of law as a result of ETP LLC being the general partner of ETP GP, (ii) ETP GP arising by operation of law as a result of ETP GP being the general partner of ETP, (iii) Regency LLC arising by operation of law as a result of Regency LLC being the general partner of Regency GP, and (iv) Regency GP arising by operation of law as a result of Regency GP being the general partner of Regency;
(f) Indebtedness in respect to future payment for non-competition covenants and similar payments under agreements governing a Permitted Acquisition by a Restricted Person not to exceed at any time $5,000,000;
(g) Indebtedness arising from of any Person that becomes a Restricted Subsidiary after the honoring date hereof incurred prior to the time such Person becomes a Subsidiary, not to exceed at any time $15,000,000; provided that (i) such Indebtedness is not created in contemplation of such Person becoming a Subsidiary and (ii) such Indebtedness is not assumed or Guaranteed by a bank any other Restricted Person;
(h) other Indebtedness of the Borrower (and, without duplication, Guarantees thereof by Subsidiaries of the Borrower who are Guarantors of the Obligations hereunder) in an aggregate principal amount not to exceed at any time $20,000,000;
(i) Senior Note Indebtedness; provided the amount of such Indebtedness shall not exceed an aggregate principal amount of $1,850,000,000 outstanding at any one time; and
(j) refinancings, renewals or other financial institution extensions of a check, draft all or similar instrument drawn against insufficient funds in the ordinary course any part of business or other cash management services, in each case any Indebtedness incurred in accordance with the ordinary course foregoing clause (j) (“Senior Note Refinancing Indebtedness”), provided that (i) the maturity date of business;such Senior Note Refinancing Indebtedness is no earlier than the Maturity Date, (ii) there are no scheduled repayments of principal of such Senior Note Refinancing Indebtedness or sinking fund payments thereon prior to the Maturity Date, (iii) the documents or instruments governing such Indebtedness do not contain any maintenance financial covenant, (iv) such Indebtedness is not secured, and (v) the principal amount of such Senior Note Refinancing Indebtedness does not exceed the principal amount of Senior Note Indebtedness being refinanced, renewed or extended except by an amount equal to accrued and unpaid interest, prepayment premium, fees and expenses reasonably incurred in connection with such refinancing, renewal or extension.
Appears in 1 contract
Indebtedness. IncurThe Parent, any Intermediate Holdco and the Borrower will not create, incur, assume or permit to exist exist, and will not permit any Restricted Subsidiary to create, incur, assume or permit to exist, any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on created under the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Documents;
(b) Indebtedness created hereunder existing on the Second Restatement Effective Date (including pursuant to Section 2.21, Section 2.22 other than Indebtedness permitted by clause (a) above and Section 2.23clauses (g) and under the other Loan Documents (n) below) set forth in Schedule 6.01, and any Permitted Refinancing Notes incurred to Refinance such IndebtednessIndebtedness in respect of Indebtedness permitted by this clause (b);
(c) Indebtedness of (i) any Loan Party to any other Loan Party, (ii) any Restricted Subsidiary that is not a Loan Party to the Borrower or any other Restricted Subsidiary pursuant to Hedging Agreements entered into for nonthe extent permitted by Section 6.05 and (iii) any Loan Party to any Restricted Subsidiary that is not a Loan Party; provided all such Indebtedness permitted under this sub-speculative purposesclause (iii) shall be subordinated to the Obligations of the issuer of such Indebtedness;
(d) Guarantees of Indebtedness owed of the Borrower or any other Restricted Subsidiary, all to the extent permitted by Section 6.05;
(including i) Finance Lease Obligations of the Borrower and its Restricted Subsidiaries and (ii) obligations secured by Liens permitted by Section 6.02(e);
(f) Indebtedness in respect of letters of credit or (including trade letters of credit), bank guarantees or similar instruments for issued or incurred in the benefit of) ordinary course of business, including in respect of card obligations or any person providing workers’ compensationoverdraft and related liabilities arising from treasury, depository and cash management services or any automated clearing house transfers, workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) unsecured Indebtedness of the Parent and any Intermediate Holdco so long as (A) immediately prior to and after giving effect to the creation, incurrence or assumption of such Indebtedness, the Parent and the Borrower are in compliance with Section 6.09, (B) the scheduled maturity of any principal amount thereof shall not be earlier than the date which is 90 days after the Latest Maturity Date (determined as of the date such Indebtedness is incurred), or, in the case of Indebtedness under this clause (g) that refinances, refunds, renews, replaces or extends Indebtedness previously permitted by this clause (g), not earlier than the earlier of (I) final maturity date of the Indebtedness so refinanced, refunded, renewed, replaced or extended and (II) the date which is 90 days after the Latest Maturity Date (determined as of the date such Indebtedness is incurred) and (C) none of the Borrower or any of its Restricted Subsidiaries has made any Guarantee with respect to such Indebtedness and (ii) the Existing Convertible Holdco Notes;
(h) Indebtedness of Restricted Subsidiaries, including Restricted Subsidiaries that are not Guarantors; provided that Indebtedness shall be permitted to be incurred pursuant to this clause (h) only if at the time such Indebtedness is incurred the aggregate principal amount of Indebtedness outstanding pursuant to this clause (h) at such time (including such Indebtedness) would not exceed the greater of (i) $50,000,000 and (ii) 10% of Consolidated EBITDA for the most recently ended four full fiscal quarter period ending immediately prior to such date for which financial statements have been delivered pursuant to Sections 5.01(a) or (b) of this Agreement (or, prior to the initial delivery under this Agreement, Section 6.1 of the Amended and Restated Credit Agreement);
(i) Indebtedness of Foreign Subsidiaries; provided that Indebtedness shall be permitted to be incurred pursuant to this clause (i) only if at the time such Indebtedness is incurred the aggregate principal amount of Indebtedness outstanding pursuant to this clause (i) at such time (including such Indebtedness) would not exceed the greater of (i) $50,000,000 and (ii) 10% of Consolidated EBITDA for the most recently ended four full fiscal quarter period ending immediately prior to such date for which financial statements have been delivered pursuant to Sections 5.01(a) or (b) of this Agreement (or, prior to the initial delivery under this Agreement, Section 6.1 of the Amended and Restated Credit Agreement);
(j) Indebtedness in respect of bid, performance, surety, stay, customs, appeal or replevin bonds or performance and completion guarantees and similar obligations issued or incurred in the ordinary course of business, including guarantees or obligations of any Restricted Subsidiary with respect to letters of credit, bank guarantees or similar instruments supporting such obligation;
(k) Indebtedness in respect of judgments, decrees, attachments or awards that do not constitute an Event of Default under Section 7.01(k);
(l) [reserved];
(m) Indebtedness of any Person that is acquired by the Borrower or any of its Restricted Subsidiaries and becomes a Restricted Subsidiary or is merged with or into the Borrower or any of its Restricted Subsidiaries after the Second Restatement Effective Date and Indebtedness secured by an asset acquired by the Borrower or any of its Restricted Subsidiaries after the Second Restatement Effective Date and, in each case, refinancings, renewals, extensions, refundings and replacements thereof (provided that any such refinancing, renewal, extension, refunding or replacement shall not (i) increase the principal amount of such Indebtedness other than by the amount of any undrawn commitment existing prior to such refinancing, renewal, extension, refunding or replacement and any unpaid accrued interest and premium on such Indebtedness plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such refinancing, renewal, extension, refunding or replacement, (ii) shorten the maturity of any principal amount of such Indebtedness, (iii) change the obligor under such Indebtedness or (iv) expand the Property securing such Indebtedness); provided that (A) such original Indebtedness was in existence on the date such Person became a Restricted Subsidiary or merged with or into the Borrower or any of its Restricted Subsidiaries or on the date that such asset was acquired, as the case may be, (B) such original Indebtedness was not created in contemplation of such Person becoming a Restricted Subsidiary or merging with or into the Borrower or any of its Restricted Subsidiaries or such asset being acquired, as the case may be, (C) immediately after giving effect to the acquisition of such Person or asset by the Borrower or any of its Restricted Subsidiaries, as the case may be, no Default or Event of Default shall have occurred and be continuing and (D) after giving pro forma effect to such acquisition, the Consolidated Net Senior Secured Leverage Ratio shall not be greater than 2.50 to 1.0;
(n) (i) (A) Non-Recourse Debt of the Borrower or any Restricted Subsidiary secured by fee-owned real property of the Borrower or such Restricted Subsidiary and (B) upon transfer of any fee-owned property of the type described in the foregoing sub-clause (A) to an Unrestricted Subsidiary, Non-Recourse Debt of such Unrestricted Subsidiary secured by such property and (ii) Indebtedness in respect of Sale and Leaseback Transactions permitted by Section 6.11; provided that the principal amount of such Non-Recourse Debt pursuant to reimbursement or indemnification sub-clause (i)(A) of this clause (n) shall not exceed an amount equal to $125,000,000 at any time outstanding;
(o) Indebtedness in the form of (i) guarantees of loans and advances to officers, directors, consultants and employees, in an aggregate amount not to exceed $10,000,000 at any one time outstanding, and (ii) reimbursements owed to officers, directors, consultants and employees;
(p) Indebtedness consisting of obligations to such personmake payments to current or former officers, directors and employees, their respective estates, spouses or former spouses with respect to the cancellation, or to finance the purchase or redemption, of Equity Interests of the Borrower or the Parent to the extent permitted by Section 6.04;
(q) Cash Management Obligations and other Indebtedness in respect of card obligations, netting services, overdraft protections and similar cash management arrangements, in each case in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(er) Indebtedness consisting of (i) the Borrower to any Subsidiary and financing of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection insurance premiums with the cash management, tax and accounting operations providers of the Borrower and the Subsidiariessuch insurance or their affiliates or (ii) shall be subordinated take-or-pay obligations contained in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligationssupply arrangements, in each case provided in the ordinary course of business or consistent with past practice or industry practicescase, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(s) Indebtedness supported by a Letter of Credit, in a principal amount not to exceed the face amount of such Letter of Credit;
(t) Indebtedness of any Unrestricted Subsidiary consisting entirely of Non-Recourse Debt; provided that if any such Indebtedness ceases to be Non-Recourse Debt of such Unrestricted Subsidiary, such event shall be deemed to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the Borrower that was not permitted by this Section 6.01(t);
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) ), and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents Documents, and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit I hereto or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (w) in the case of any such Indebtedness secured by Liens on Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 2.35 to 1.00 or (II) not greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (x) in the case of any such Indebtedness secured by Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.60 to 1.00 or (II) not greater than the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of any other such Indebtedness, the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not less than 2.00 to 1.00 or (II) not less than the Interest Coverage Ratio in effect immediately prior thereto and (z) in the case of any such Indebtedness incurred under this clause (h) by a Subsidiary other than a Subsidiary Loan Party, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence (but not assumption) of term loan Indebtedness pursuant to clause (i)(w) above shall be subject to the last paragraph of Section 6.02; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed the greater of $250,000,000 and 0.075 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiaries in an aggregate outstanding principal amount not greater than 100% of the net cash proceeds received by the Borrower after the Closing Date from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions;
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the 2015 Transactions, the ADT Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) (i) Indebtedness, including Indebtedness in respect of the Second Priority Senior Secured Notes, in an aggregate principal amount outstanding pursuant to this Section 6.01(p) not to exceed $3,140,000,000 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 2.35 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of term loan Indebtedness pursuant to this clause (q)(i) shall be subject to the last paragraph of Section 6.01 and the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 3.60 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any term loan Indebtedness pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) unsecured Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any term loan Indebtedness pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed the Incremental Amount available at the applicable time of determination set forth in the definition thereof; provided that the incurrence of term loan Indebtedness pursuant to this clause (z)(i) shall be subject to the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) Guarantees of Indebtedness under customer financing lines of credit entered into in the ordinary course of business;
(i) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incur
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness Indebtedness, including Capitalized Lease Obligations (other than as Indebtedness described in Section 6.01(b) below) existing or committed on the Restatement Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 50,000,000 shall be set forth in Schedule 6.016.01 of the Restatement Effective Date Certificate) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) subject to Section 6.08, Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Loan Party owing to a Loan Party incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04(b) and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor and Indebtedness of any Guarantor owing to the Borrower incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Restatement Effective Date or a person merged or consolidated with the Borrower or any Subsidiary after the Restatement Effective Date and Indebtedness otherwise assumed by any Loan Party in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger, amalgamation or consolidation is not prohibited by this Agreement; provided, that, (x) Indebtedness acquired or assumed pursuant to this subclause (h)(i) shall be in existence prior to the respective merger or acquisition of assets or Equity Interests (including a Permitted Business Acquisition) and shall not have been created in contemplation thereof or in connection therewith, and (y) after giving effect to the acquisition or assumption of such Indebtedness, (A) the Borrower shall be in compliance with the Financial Covenants (if applicable) and (B) the Total Leverage Ratio shall not be greater than 5.00 to 1.00, in each case calculated on a Pro Forma Basis for the then most recently ended Test Period; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) Capitalized Lease Obligations (and any Permitted Refinancing Indebtedness in respect thereof) in an aggregate principal amount not to exceed the greater of (x) $1,500,000,000 and (y) 16.5% of Pro Forma LTM EBITDA measured at the time of incurrence, creation or assumption (plus any increase in the amount thereof in connection with any refinancing, renewal or extension thereof to the extent such increase is permitted by the definition of “Permitted Refinancing Indebtedness”);
(j) (x) mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 360 days after the acquisition, lease, construction, repair, replacement or improvement of fixed or capital assets in order to finance such acquisition, lease, construction, repair, replacement or improvement (whether through the direct purchase of property or the Equity Interests of any person owning such property), in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(j), would not exceed the greater of (x) $2,500,000,000 and (ii) 27.5% of Pro Forma LTM EBITDA measured when incurred, created or assumed, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of the Borrower or any Subsidiary (including, for the avoidance of doubt, any Guarantees thereof), in an aggregate principal amount not to exceed the greater of (x) $1,500,000,000 and (y) 16.5% of Pro Forma LTM EBITDA (measured when incurred, created or assumed) at any time outstanding;
(l) the Secured Notes and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(m) Guarantees (A) by the Borrower of Indebtedness of any Subsidiary, (B) by any Subsidiary that is not a Guarantor or a Subsidiary of a Guarantor of Indebtedness of any other Subsidiary that is not a Guarantor or a Subsidiary of a Guarantor and (C) by any Guarantor or Subsidiary of such Guarantor of Indebtedness of any other Subsidiary of such Guarantor;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with any Permitted Business Acquisition or similar Investment or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued in the ordinary course of business or consistent with past practice or industry practices and not supporting obligations in respect of Indebtedness for borrowed money;
(p) (i) Permitted Unsecured Debt so long as immediately after giving effect to the incurrence of such Permitted Unsecured Debt and the use of proceeds thereof, the Total Leverage Ratio shall not be greater than (A) solely for the benefit of the Term A Facility, the Term A-1 Facility and the Revolving Facility, 4.75 to 1.00 (this subclause (p)(i)(A) the “Pro Rata Only Debt Restriction”) or (B) 5.00 to 1.00, in each case calculated on a Pro Forma Basis for the then most recently ended Test Period (including, for the avoidance of doubt, any Guarantees of such Permitted Unsecured Debt by the Guarantors, which shall be subordinated to the extent required by the definition of “Permitted Unsecured Debt”) and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(q) obligations in respect of Cash Management Agreements in the ordinary course of business;
(r) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(s) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower or any Subsidiary incurred in the ordinary course of business;
(i) Indebtedness incurred by any Subsidiary that is not a Guarantor so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Priority Leverage Ratio shall not be greater than 3.25 to 1.00 calculated on a Pro Forma Basis for the then most recently ended Test Period and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) [reserved];
(v) Indebtedness issued by the Borrower (and, for the avoidance of doubt, the Guarantee thereof by any Guarantor) and in the form of one or more series of senior or subordinated notes or loans (which may be unsecured or secured on a junior lien basis or a pari passu basis with the Liens securing the Obligations), (the “Incremental Equivalent Debt”); provided that (i) no Event of Default shall have occurred and be continuing or would exist after giving effect to such Indebtedness, (ii) any such Incremental Equivalent Debt in the form of term loans secured on a pari passu basis with the Liens securing the Obligations shall be subject to the MFN Provision as if such Indebtedness was Other Incremental Term Loans, (iii) such Incremental Equivalent Debt (A) shall have no borrower (other than the Borrower) or guarantor (other than the Guarantors), (B) if secured, shall not be secured by any assets other than the Collateral, (C) other than in the case of Permitted Earlier Maturity Debt, shall have a Weighted Average Life to Maturity no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans, (iv) other than Permitted Earlier Maturity Debt, such Incremental Equivalent Debt shall not be subject to any maturity, mandatory redemption, repurchase, prepayment or sinking fund obligation (other than customary offers to repurchase and prepayment events upon a change of control, asset sale or event of loss (or from the proceeds of an equity offering or Permitted Refinancing Indebtedness) and a customary acceleration right after an event of default) prior to the then Latest Maturity Date, (D) other than in the case of Permitted Earlier Maturity Debt, shall have a final maturity no earlier than the Latest Maturity Date in effect at the date of incurrence of such Incremental Equivalent Debt (provided that such Incremental Equivalent Debt may be incurred in the form of a customary “bridge” or other interim credit facility intended to be refinanced or replaced with long-term indebtedness so long as, subject only to customary conditions the failure of which to be satisfied would otherwise result in an Event of Default, it would either be automatically converted into or required to be exchanged for permanent financing which satisfies the requirements of this clause (D)), (E) shall be subject to the First Lien Intercreditor Agreement or a Permitted Junior Intercreditor Agreement, as applicable, (v) such Incremental Equivalent Debt shall have terms and conditions (other than (x) pricing, rate floors, discounts, fees, premiums and optional prepayment or redemption provisions and (y) covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence of such Indebtedness) that (i) in the good faith judgment of the Borrower are not materially less favorable (when taken as a whole) to the Borrower than the terms and conditions of the Loan Documents (when taken as a whole) or (ii) are otherwise reasonably satisfactory to the Administrative Agent (provided, that a certificate of a financial officer of the Borrower delivered to the Administrative Agent at least five (5) Business Days prior to the incurrence of such Incremental Equivalent Debt, together with a reasonably detailed description of the material terms and conditions thereof or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the requirement set forth in this clause (v), shall be conclusive evidence that such terms and conditions satisfy such requirement unless the Administrative Agent provides notice to the Borrower of its objection during such five (5) Business Day period (including a reasonable description of the basis upon which it objects)); (vi) the Borrower shall be in compliance with the Financial Covenants (if applicable) at the time of the incurrence of such Incremental Equivalent Debt on a Pro Forma Basis for the then most recently ended Test Period; provided, that for purposes of calculating compliance with the Financial Covenants under this clause (vi), any Revolving Facility Commitments (including any Incremental Revolving Facility Commitments) in excess of $2,000,000 shall be deemed to be fully drawn and (vii) after giving effect to the incurrence of such Incremental Equivalent Debt, the aggregate principal amount of all Incremental Equivalent Debt (together with all Incremental Loans and Incremental Commitments) shall not exceed the Incremental Amount;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Permitted Sale Lease-Back Transaction and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(x) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower permitted by Section 6.06;
(y) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder;
(z) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; and
(aa) any Qualified Receivable Facilities in an aggregate Outstanding Receivables Amount not to exceed $500,000,000 at any time outstanding. For purposes of determining compliance with this Section 6.01 or Section 6.02, the amount of any Indebtedness denominated in any currency other than Dollars shall be calculated based on 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 or prior to the Restatement Effective Date, on the Restatement Effective Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Restatement Effective Date, on the date on which 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 (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing. Further, for purposes of determining compliance with this Section 6.01, (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (z) but may be permitted in part under any relevant combination thereof (and subject to compliance, where relevant, with Section 6.02), (B) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of
Appears in 1 contract
Sources: Credit Agreement (Centurylink, Inc)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred in respect thereof (other than intercompany Indebtedness Refinanced with Indebtedness owed to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes incurred to Refinance such IndebtednessIndebtedness in respect thereof;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness in respect of self-insurance and Indebtedness and other obligations owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesnorm;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J hereto or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesnorm, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesnorm;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in each case incurred in the ordinary course of business or other cash management services, in each case services incurred in the ordinary course of business or consistent with past practice or industry norm; 158
(h) (i) (a) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and (b) Indebtedness otherwise incurred (but not assumed or acquired) by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition or merger, consolidation or amalgamation), where such acquisition, merger, consolidation or amalgamation is not prohibited by this Agreement; provided, that (A)(w) in the case of any such Indebtedness described in preceding clause (a), such Indebtedness was not incurred in contemplation of such acquisition, merger, consolidation or amalgamation, (x) in the case of any such Indebtedness secured by Liens on the Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 3.00 to 1.00, (y) in the case of any such Indebtedness secured by Liens on the Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 4.00 to 1.00 and (z) in the case of any other such Indebtedness, either (1) the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not less than 2.00 to 1.00 or (2) the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 4.00 to 1.00 and (B) in the case of any such Indebtedness described in preceding clause (b), (x) the final stated maturity date of such Indebtedness shall be no earlier than the Latest Maturity Date of any Class of Term Loans, (y) the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of any Class of then outstanding Term Loans and (z) the MFN Provision shall apply to such Indebtedness to the same extent as applicable to the Subject Term Loans described therein and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing; provided that the aggregate outstanding principal amount of Indebtedness described in preceding clause (b) (together with Permitted Refinancing Indebtedness in respect thereof) incurred by a Subsidiary other than a Subsidiary Guarantor shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q), Section 6.01(r) and Section 6.01(s) incurred by Subsidiaries other than the Subsidiary Guarantors, the greater of $133,000,000 and 0.25 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(i) (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 365 days after the acquisition, lease, construction, installation, repair, replacement or improvement of the respective property (real or personal), equipment or other assets (whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, repair, replacement or improvement, in an aggregate principal amount outstanding that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $266,500,000 and 0.50 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (ii) Indebtedness (including Capitalized Lease Obligations) incurred by the Borrower or any Subsidiary to finance (whether prior to or within 365 days after) the acquisition, lease, construction, installation, repair, replacement or improvement of property (real or personal), equipment or related assets used or useful in the business of the Borrower and its Subsidiaries and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing; 159
(j) (i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease- Back Transaction that is permitted under Section 6.03 and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $266,500,000 and 0.50 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower after the Closing Date from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions or Permitted Cure Securities or otherwise result in an increase to the Cumulative Credit or the baskets described in Sections 6.04(q) and 6.09(b)(i)(C) and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(m) Guarantees (i) by the Borrower or any Subsidiary Guarantor of any Indebtedness of the Borrower or any Subsidiary Guarantor permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Guarantor of Indebtedness otherwise permitted hereunder of any Subsidiary that is not the Borrower or a Subsidiary Guarantor to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Guarantor of Indebtedness of another Subsidiary that is not a Subsidiary Guarantor and (iv) by the Borrower or any Subsidiary Guarantor of Indebtedness of Subsidiaries that are not Subsidiary Guarantors incurred for working capital purposes in the ordinary course of business or consistent with past practice or industry norm on ordinary business terms, so long as such Indebtedness is permitted to be incurred under Section 6.01 to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Guarantor under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated to such other Indebtedness; 160
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price, deferred purchase price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, any New Projects, other Investments or the acquisition or disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness), in each case, in the ordinary course of business or consistent with past practice or industry norm;
(p) Guarantees by the Borrower or any Subsidiary of Indebtedness under customer financing lines of credit entered into in the ordinary course of business or consistent with past practice or industry norm;
(q) (i) Indebtedness secured by ▇▇▇▇▇ on the Collateral that are Other First Liens, so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.00 to 1.00; provided, that (x) the final stated maturity date of such Indebtedness shall be no earlier than the Latest Maturity Date of any Class of Term Loans, (y) the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of any Class of then outstanding Term Loans and (z) the MFN Provision shall apply to such Indebtedness to the same extent as applicable to the Subject Term Loans described therein and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing; provided, further, that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (q) (including Permitted Refinancing Indebtedness) incurred by a Subsidiary other than a Subsidiary Guarantor shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to the proviso in Section 6.01(h) and Sections 6.01(r) and (s) incurred by Subsidiaries other than the Subsidiary Guarantors, the greater of $133,000,000 and 0.25 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(r) (i) Indebtedness secured by Li▇▇▇ ▇n the Collateral that are Junior Liens, so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 4.00 to 1.00; provided, that (x) the final stated maturity date of such Indebtedness shall be no earlier than the Latest Maturity Date of any Class of Term Loans, and (y) the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of any Class of then outstanding Term Loans and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing; provided, further, that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (r) (including Permitted Refinancing Indebtedness) incurred by a Subsidiary other than a Subsidiary Guarantor shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to the proviso in Section 6.01(h) and Sections 6.01(q) and (s) incurred by Subsidiaries other than the Subsidiary Guarantors, the greater of $133,000,000 and 0.25 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; 161
(i) unsecured Indebtedness, so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, either (1) the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00 or (2) the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 4.00 to 1.00; provided, that (x) the final stated maturity date of such Indebtedness shall be no earlier than the Latest Maturity Date of any Class of Term Loans, and (y) the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of any Class of then outstanding Term Loans and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing; provided, further, that the aggregate outstanding principal amount of Indebtedness incurred pursuant to this clause (s) (including Permitted Refinancing Indebtedness) incurred by a Subsidiary other than a Subsidiary Guarantor shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to the proviso in Section 6.01(h) and Sections 6.01(q) and (r) incurred by Subsidiaries other than the Subsidiary Guarantors, the greater of $133,000,000 and 0.25 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(i) Indebtedness of Subsidiaries that are not Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(bb), the greater of $160,000,000 and 0.30 times the Adjusted EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness incurred in the ordinary course of business or consistent with past practice or industry norm in respect of obligations of the
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred in respect thereof (other than intercompany Indebtedness Refinanced with Indebtedness owed to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes incurred to Refinance such IndebtednessIndebtedness in respect thereof;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes, Commercial Agreements entered into in the ordinary course of business and for non-speculative purposes and Supply Chain Financings;
(di) Indebtedness owed constituting reimbursement obligations with respect to (including obligations in respect of letters of credit or credit, bankers acceptances and bank guarantees or similar instruments for credit transactions issued in the benefit of) any person providing ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensationcompensation claims, health, disability or other employee benefits to employees or former employees or their families or property, casualty or liability insurance or self-insurance, and letters of credit in connection with the maintenance of, or pursuant to the requirements of, environmental or other permits or licenses from governmental authorities, or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims and (ii) obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit, bank guarantees, warehouse receipts and similar instruments) in respect of performance, bid, appeal and surety bonds, performance and completion guarantees and similar obligations provided by the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case Subsidiary in the ordinary course of business or consistent with past practice or industry practicesnorm, or issued to any Governmental Authority as required by such Governmental Authority;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, cash pooling, tax and accounting operations of the Borrower and the its Subsidiaries) Indebtedness owed by any Loan Party to any Subsidiary that is not a Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit I hereto or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, performance and completion guarantees guarantees, trade contracts, tender, stay, statutory, judgment, appeal, advance payment, indemnities, supply chain financing transactions, export or import transactions, customs, sales, value added or similar taxes, revenue bonds and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesnorm, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesnorm or issued to any Governmental Authority as required by such Governmental Authority;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business business, or other cash management services;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person amalgamated, merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred, issued or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition or merger, consolidation or amalgamation) or other Investments or New Projects, where such acquisition, merger, consolidation, amalgamation, Investment or New Project is not prohibited by this Agreement; provided, that the aggregate outstanding principal amount of such Indebtedness incurred or issued pursuant to this clause (h)(i) does not to exceed the sum of (A) the greater of $242,000,000 and 1.00 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period as of the date of the incurrence of such Indebtedness or the establishment of commitments in respect thereof, plus (B) an additional amount so long as, if incurred or issued pursuant to this clause (B), (x) in the case of any such Indebtedness secured by Liens on the Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, amalgamation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 1.75 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (y) in the case of any such Indebtedness secured by Liens on the Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, amalgamation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.00 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto and (z) in the case of any other such Indebtedness, either (I) the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, amalgamation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (A) not less than 2.00 to 1.00 or (B) no less than the Interest Coverage Ratio in effect immediately prior thereto or (II) the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, amalgamation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (A) not greater than 3.50 to 1.00 or (B) no greater than the Net Total Leverage Ratio in effect immediately prior thereto and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 365 days after the acquisition, lease, construction, installation, maintenance, service, repair, replacement, remodeling, modernization, expansion, upgrade, development, update or improvement of the respective property (real or personal), equipment or other asset (whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, maintenance, services, repair, replacement, remodeling, modernization, upgrade, development, expansion, update or improvement, in an aggregate principal amount outstanding that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $121,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (ii) Indebtedness (including Capitalized Lease Obligations) incurred by the Borrower or any Subsidiary to finance (whether prior to or within 365 days after) the acquisition, lease, construction, installation, maintenance, service, repair, replacement, remodeling, modernization, expansion, upgrade, development, update or improvement of property (real or personal), equipment or other assets (whether through the direct purchase of property or the Equity Interest of any person owning such property) used or useful in the business of the Borrower and its Subsidiaries and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(j) (i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03 and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $181,500,000 and 0.75 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided that the aggregate outstanding principal amount of Indebtedness incurred utilizing this clause (k)(i) shall reduce the availability under clause (i)(a)(y) of the definition of “Incremental Amount” for so long as such Indebtedness remains outstanding, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower after the Closing Date (x) from the issuance or sale of its Qualified Equity Interests, (y) from a contribution to its common equity or (z) that becomes part of the capital of the Borrower through consolidation, amalgamation or merger achieved through the issuance of, or in exchange for, Equity Interests of the Borrower or any Parent Entity (in each case of (x), (y) and (z), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions or Permitted Cure Securities and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(m) Guarantees by the Borrower or any Subsidiary of any Indebtedness of the Borrower or any Subsidiary permitted to be incurred under this Agreement; provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated to such other Indebtedness;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price, deferred purchase price or similar obligations (including earn-outs), in each case case, incurred or assumed in connection with the Transactions, the Borrower IPO, any Permitted Business Acquisition, any New Projects, other Investments or the acquisition or disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness), in each case, in the ordinary course of business or consistent with past practice or industry norm;
(p) Guarantees by the Borrower or any Subsidiary of Indebtedness under customer financing lines of credit entered into in the ordinary course of business or consistent with past practice or industry norm;
(q) (i) Indebtedness secured by ▇▇▇▇▇ on the Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 1.75 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(r)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that is, in each case, incurred by Subsidiaries other than Subsidiary Loan Parties, the greater of $121,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness pursuant to this clause (q)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(r) (i) Indebtedness secured by Liens on the Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 3.00 to 1.00; provided that the (x) aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(r)(i), Section 6.01(q)(i), Section 6.01(s)(i) and Section 6.01(z)(i) that is, in each case, incurred by Subsidiaries other than Subsidiary Loan Parties, the greater of $121,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, either (x) the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00 or (y) the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 3.50 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(s)(i), Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(z)(i) that is, in each case, incurred by Subsidiaries other than Subsidiary Loan Parties, the greater of $121,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $121,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness incurred in the ordinary course of business;business or consistent with past practice or industry norm in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with suc
Appears in 1 contract
Sources: Revolving Credit Agreement (Phoenix Education Partners, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness existing on the Closing Date and set forth on Schedule 7.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such intercompany indebtedness Refinanced with Indebtedness that is owed to a person not affiliated with such Borrower or any person Subsidiary);
(i) Indebtedness created hereunder and under the other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) Loan Documents and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; providedand (ii) Guarantees by the Borrowers and the Material Subsidiaries of Indebtedness of Ultimate Parent, that Parent Guarantor or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessSubsidiary thereof;
(c) Indebtedness of the Borrower obligations (contingent or any Subsidiary pursuant to Hedging Agreements otherwise) arising under a Swap Contract if such obligations are (or were) entered into by such Person in the ordinary course of business for non-speculative purposesthe purpose of directly mitigating risks associated with fluctuations in interest rates, commodity prices or foreign exchange rates(or to allow any customer to do so); provided, however, to the extent that such Indebtedness is incurred under a Secured Hedge Agreement, such Secured Hedge Agreement was entered into in connection with the execution of customer contracts to hedge currency and commodity risk thereunder;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the any Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) unsecured Indebtedness of the any Borrower to the Ultimate Parent, any Subsidiary of Ultimate Parent or any Subsidiary and of any Subsidiary to Ultimate Parent, any Subsidiary of Ultimate Parent, the Borrower Borrowers or any other Subsidiary; providedprovided that, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash managementmanagement operations among Ultimate Parent and its subsidiaries, tax and accounting operations Indebtedness of the Borrower and the Subsidiariesany Loan Party to any Person incurred under this clause (e) shall be subordinated in right of payment to the Loan ABL Credit Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of notification to the applicable Borrower of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(h) (i)(x) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with any Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger, consolidation or amalgamation is permitted by this Agreement and (y) Indebtedness incurred to finance Permitted Business Acquisitions permitted pursuant to Section 7.04(j) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by any Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases permitted under Section 7.03(b), would not exceed $125,000,000 at any time outstanding;
(j) Capital Lease Obligations incurred by any Borrower or any Subsidiary in respect of any Sale and Lease Back Transaction that is permitted under Section 7.03 and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of any Borrower or any Subsidiary, in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed $25,000,000 at any time outstanding; provided that any Indebtedness incurred pursuant to this clause (k) that by its terms is subordinated in right of payment to the ABL Credit Obligations shall not, pursuant to the terms thereof, be required to be repaid (other than pursuant to customary change of control, asset sale proceeds and similar provisions), in whole or in part, prior to the date that is 91 days following the Facility Maturity Date;
(l) Indebtedness arising from agreements of any Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case case, incurred or assumed in connection with the Transactions and any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(m) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(n) Indebtedness supported by a Letter of Credit in a principal amount not in excess of the stated amount of such Letter of Credit;
(o) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(p) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties; provided that the aggregate amount of Indebtedness incurred under this clause (p), when aggregated with all other Indebtedness incurred and outstanding pursuant to this clause (p), shall not exceed $10,000,000 at the time of such incurrence;
(q) Indebtedness representing deferred compensation to employees and directors of any Borrower or any Subsidiary incurred in the ordinary course of business;
(r) Indebtedness consisting of obligations of any Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder;
(s) Indebtedness incurred under any Qualified Receivables Financing;
(t) Indebtedness of Wise to Rexam evidenced by or arising under the Rexam Financing Documents in an amount not to exceed the amount outstanding on the Closing Date, less the aggregate amount of all repayments, repurchases, redemptions, rebates or credits, whether optional or mandatory, in respect thereof, plus interest thereon (whether or not capitalized) at the rate provided in the Rexam Financing Documents and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; and
(u) all premiums (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (t) above.
Appears in 1 contract
Sources: Credit Agreement (Constellium N.V.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(bintercompany Indebtedness) below) existing of the Subsidiaries existing, or committed incurred pursuant to facilities existing, on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; providedIndebtedness or, without duplication, replacements of such facilities that any would constitute Permitted Refinancing Indebtedness with respect to such facilities if all Indebtedness available to be incurred thereunder were outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary on the date of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)such replacement;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;;
(c) Indebtedness of the Borrower or any Subsidiary and the Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.12;
(d) Indebtedness of the Borrower and the Subsidiaries owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case case, provided in the ordinary course of business or consistent business; provided, that upon the incurrence of Indebtedness with past practice or industry practices;respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence; US-DOCS\101954982.7▇▇▇▇▇▇▇▇▇.8
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that (i) Indebtedness owed by of any Subsidiary that is not a Subsidiary Loan Party owing to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04, and (ii) Indebtedness of the Borrower owing to any Subsidiary and Indebtedness of any other Loan Party owing to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Subsidiary Loan Party shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness of the Borrower and the Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided case, reasonably required in the ordinary course conduct of the business (giving effect to any growth or consistent with past practice or industry practicesexpansion of such business permitted hereunder), including those incurred to secure health, safety safety, insurance and environmental obligations of the Borrower and its Subsidiaries as conducted in accordance with good and prudent business industry practice and otherwise as permitted by the ordinary course of business or consistent with past practice or industry practicesLoan Documents;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred services in the ordinary course of businessbusiness and in good faith; provided, that (i) such Indebtedness (other than credit or purchase cards) is extinguished within 10 Business Days of notification to the Borrower of its incurrence; and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness, in each case, exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h) or paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), would not exceed $45,000,000 in the aggregate;
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Amendment No. 3 Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than (x) intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment or any Subsidiary and (y) to the same extent required pursuant to Section 6.01(eset forth on Schedule 6.01);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such IndebtednessIndebtedness after the Amendment No. 3 Effective Date;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness in respect of self-insurance and Indebtedness and other obligations owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicespractice;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 (provided, for the avoidance of doubt, that, during the period commencing on the Amendment No. 3 Effective Date and ending on the last day of the Covenant Adjustment Period, no new Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be Incurred, created, assumed or permitted to exist pursuant to this Section 6.01(e)) and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J hereto or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicespractice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in each case incurred in the ordinary course of business or other cash management services, in each case services incurred in the ordinary course of business or consistent with past practice;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Acquisition) or any Investment or New Project permitted hereunder, where such acquisition, merger or consolidation, Investment or New Project is not prohibited by this Agreement; provided that (x) the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 4.00 to 1.00 and (y) in the case of any such Indebtedness incurred under this clause (h)(i) by a Subsidiary other than a Subsidiary Loan Party that is incurred in contemplation of such acquisition, merger or consolidation, Investment or New Project, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, Investment or New Project, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(h)(i)(y) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, shall not exceed the greater of $15,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, installation, repair, replacement or improvement of the respective property (real or personal), equipment or other asset (whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, repair, replacement or improvement, in an aggregate principal amount outstanding that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $35,000,000 and 0.35 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03 and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $20,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions;
(m) Guarantees (i) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(l) or 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business or consistent with past practice on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01 to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(l) or Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice;
(p) Guarantees by the Borrower or any Subsidiary of Indebtedness under customer financing lines of credit entered into in the ordinary course of business or consistent with past practice;
(q) [reserved];
(r) [reserved];
(i) unsecured Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Total Leverage Ratio on a Pro Forma Basis is not greater than 4.00 to 1.00; provided that the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(h)(i)(y) and this Section 6.01(s)
(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $15,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t) (i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $15,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business or consistent with past practice in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business or consistent with past practice and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business or consistent with past practice;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(z) [reserved];
(aa) [reserved];
(bb) (i) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $75,000,000 and 0.75 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees thereof, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Borrower permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Acquisitions or any other Investment permitted hereunder;
(ee) Indebtedness of the Borrower or any Subsidiary to or on behalf of any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business or consistent with past practice in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of the Borrower and its Subsidiaries;
(ff) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business or consistent with past practice;
(gg) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit (or a letter of credit issued under any other revolving credit or letter of credit facility permitted by Section 6.01);
(i) Indebtedness under bilateral, working capital or local facilities in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(hh)(i), would not exceed the greater of $50,000,000 and 0.50 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(ii) all premium (if any, including tender premiums) expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in clauses (a) through (hh) above or refinancings thereof; provided that, during the period commencing on the Amendment No. 3 Effective Date and ending on the last day of the Covenant Adjustment Period, no new Indebtedness shall be Incurred, created, assumed or permitted to exist pursuant to Section 6.01(l), (t), (w), (bb) or (hh) above. For purposes of determining compliance with this Section 6.01 or Section 6.02, 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 or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date on which 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 t
Appears in 1 contract
Sources: Credit Agreement (Cerence Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 to the Disclosure Letter and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of Person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements a Swap Agreement not entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, in each case in the ordinary course of business or consistent with past practice or industry practicessuch obligations are reimbursed not later than 60 days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, provided that (i) Indebtedness owed by of any Subsidiary that is not a Subsidiary Loan Party to any Loan Party shall be subject to Section 6.04(b) or (t) and (ii) Indebtedness of the Borrower to any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (Subsidiary Loan Party that is evidenced by a note or other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) instrument shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentObligations;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesobligations;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days of its incurrence;
(i) Indebtedness of a Subsidiary or a corporation merged into or consolidated with the Borrower or any Subsidiary and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement; provided that the aggregate principal amount of such Indebtedness acquired after the Closing Date and outstanding at any time under this paragraph (h), after giving effect to such acquisition, merger or consolidation, such assumption or such incurrence, as applicable, would not exceed the greater of $250.0 million and 65% of EBITDA as of the end of the fiscal quarter immediately prior to the date of such acquisition, merger or consolidation, such assumption or such incurrence, as applicable, for which financial statements have been delivered pursuant to Section 5.04, determined on a Pro Forma Basis; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease or improvement of the applicable asset in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount outstanding at any time under this paragraph (i) after giving effect to the incurrence thereof would not exceed the greater of $180.0 million and 47% of EBITDA as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, determined on a Pro Forma Basis;
(j) Indebtedness of the Borrower or any Subsidiary incurred in connection with any Permitted Business Acquisition or other Investment permitted hereunder, so long as (i) in the case of Indebtedness secured by the Collateral on a pari passu basis with the Loans and Commitments, after giving effect to the incurrence thereof, the Consolidated Senior Secured Leverage Ratio does not exceed 4.00 to 1.00 calculated on a Pro Forma Basis as of the date of such incurrence or (ii) in the case of Indebtedness secured by the Collateral on a senior secured second lien basis or that is not secured by the Collateral, after giving effect to the incurrence thereof, the Consolidated Leverage Ratio does not exceed the greater of (x) 5.75 to 1.00 on a Pro Forma Basis as of the date of such incurrence or (y) the Consolidated Leverage Ratio for the fiscal quarter ending immediately prior to the consummation of such permitted acquisition or Investment; provided that the trustee or other representative for such Indebtedness secured by the Collateral on a pari passu basis with the Loans and Commitments or Indebtedness secured by the Collateral on a senior secured second lien basis incurred under this clause (j) shall have entered into an intercreditor agreement with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent;
(k) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding at any time under this paragraph (k) after giving effect to the incurrence thereof, would not exceed the greater of $250.0 million and 65% of EBITDA as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, at any time;
(l) Guarantees (i) by any Loan Party of the Indebtedness of the Borrower referred to in paragraph (r) or any Permitted Refinancing Indebtedness in respect thereof, (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise expressly permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04(b) and (iv) by any Foreign Subsidiary of Indebtedness of another Foreign Subsidiary; provided that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(l) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to such other Indebtedness to the same extent;
(m) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case case, incurred or assumed in connection with the disposition of any business or assets of the Borrower or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(n) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount not in excess of $25.0 million at any time outstanding, provided that if the Revolving Facility Commitments are reduced pursuant to Section 2.08, such amount shall be increased by the amount of the Revolving Facility Commitment that was reduced, up to $75.0 million;
(o) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit; provided that such Indebtedness is promptly repaid with the proceeds of any drawing on such Letter of Credit;
(p) Indebtedness consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(q) Indebtedness of Foreign Subsidiaries in an aggregate amount not to exceed the greater of $100.0 million and 10% of Foreign Subsidiary Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04, at any time;
(r) Permitted Junior Debt and Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness incurred by any Loan Party secured on a pari passu basis with the Loans and Commitments (“First Lien Pari Passu Debt”) or second lien Indebtedness secured on a senior secured second lien basis (“Second Lien Senior Secured Debt”) so long as (x) (A) no Default or Event of Default shall have occurred and be continuing and (B) (i) in the case of First Lien Pari Passu Debt, after giving effect to the incurrence thereof, the Consolidated Senior Secured Leverage Ratio does not exceed 4.00 to 1.00 on a Pro Forma Basis as of the most recent Test Period and as of the date of such incurrence or (ii) in the case of Second Lien Senior Secured Debt, after giving effect to the incurrence thereof, the Consolidated Leverage Ratio does not exceed 5.75 to 1.00 on a Pro Forma Basis as of the most recent Test Period and as of the date of such incurrence and (y) the trustee or other representative for such First Lien Pari Passu Debt or Second Lien Senior Secured Debt, as applicable, shall have entered into an intercreditor agreement with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent;
Appears in 1 contract
Sources: Revolving Credit Agreement (Nuance Communications, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in on Schedule 6.016.0111) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit K hereto or on substantially identical subordination terms or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(h) Indebtedness of Redbox Entertainment and its Subsidiaries under the MUFG Facility that is incurred to fund any production, acquisition, exploitation, development and protection of Redbox Entertainment IP in an aggregate outstanding principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof would not exceed $9,400,000 at any time; provided that such MUFG Facility may not be guaranteed by, or have recourse to, the Borrower or its Subsidiaries (other than Redbox Entertainment and its Subsidiaries); provided, further, that immediately prior to, and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
Appears in 1 contract
Sources: Credit Agreement (Chicken Soup for the Soul Entertainment, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J hereto or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (w) in the case of any such Indebtedness secured by Liens on Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 2.50 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (x) in the case of any such Indebtedness secured by Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.00 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of any other such Indebtedness, the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not less than 2.00 to 1.00 or (II) no less than the Interest Coverage Ratio in effect immediately prior thereto and (z) in the case of any such Indebtedness incurred under this clause (h) by a Subsidiary other than a Subsidiary Loan Party that is incurred in contemplation of such acquisition, merger or consolidation, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding at such time pursuant to Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $150,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger or consolidation shall be subject to the last paragraph of this Section 6.01 and the incurrence (but not assumption) of any such term loan Indebtedness that is secured by Other First Liens shall be subject to the last paragraph of Section 6.02; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $225,000,000 and 0.35 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (ii) Capitalized Lease Obligations Incurred by the Borrower or any Subsidiary to finance (whether prior to or within 270 days after) the acquisition, lease, construction, repair, replacement or improvement of computer equipment (including servers), storage equipment, networking equipment and other equipment and similar assets related to the business of the Borrower and its Subsidiaries and any finance lease obligations not prohibited hereunder and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03, (ii) Capitalized Lease Obligations or other obligations or deferrals attributable to capital spending and (iii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $350,000,000 and 0.475 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions or Permitted Cure Securities;
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) [reserved];
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 2.50 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(h)(i) (to the extent set forth therein), this Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $150,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) shall be subject to the last paragraph of this Section 6.01 and the incurrence of any Indebtedness for borrowed money pursuant to this clause (q)(i) in the form of term loans shall be subject to the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 3.00 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(h)(i) (to the extent set forth therein), Section 6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $150,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00; provided, that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(h)(i) (to the extent set forth therein), Section 6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $150,000,000 and 0.20 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any Indebtedness for borrowed money pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $100,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed at the time of incurrence the Incremental Amount available at such time; provided that the incurrence of any Indebtedness for borrowed money pursuant to this clause (z)(i) shall be subject to the last paragraph of S
Appears in 1 contract
Sources: First Lien Credit Agreement (Rackspace Technology, Inc.)
Indebtedness. Incur, create, assume or permit to exist any IndebtednessIndebtedness (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of the Company and its subsidiaries), except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) belowunder letters of credit) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.016.01(a) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; providedIndebtedness and (ii) Indebtedness under letters of credit existing on the Effective Date and set forth on Schedule 6.01(b), that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party without giving effect to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)extension, renewal or replacement thereof;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of Holdings and the Borrower or any Subsidiary Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.11;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Holdings or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson, in each case in provided that upon the ordinary course incurrence of business or consistent Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the any Borrower to any Subsidiary or other Borrower and of any Subsidiary to the any Borrower or any other Subsidiary; provided, provided that (i) Indebtedness owed by any Loan Party to of any Subsidiary that is not a Guarantor incurred pursuant Domestic Subsidiary Loan Party to this the Loan Parties shall be subject to Section 6.01(e6.04(b) and (other than intercompany current liabilities incurred ii) Indebtedness (the “Subordinated Intercompany Debt”) of any Specified Loan Party to any Subsidiary (unless such Indebtedness shall have been pledged in the ordinary course of business in connection with the cash management, tax and accounting operations favor of the Borrower and Collateral Agent by the Subsidiariespayee Subsidiary) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to in the Administrative Agentmanner set forth in Exhibit F (it being agreed that such subordination provisions will not restrict the repayment of any such Subordinated Intercompany Debt other than when an Event of Default exists);
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred services in the ordinary course of business, provided that (x) such Indebtedness (other than credit or purchase cards) is ex- tinguished within three Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
Appears in 1 contract
Sources: Credit Agreement (Celanese CORP)
Indebtedness. Incur, Borrower shall not create, assume incur, assume, guarantee or permit be or remain liable with respect to exist any Indebtedness, except:
or permit any Subsidiary to do so, other than Permitted Indebtedness, or voluntarily prepay, or voluntarily impose on Borrower an obligation to prepay, any Indebtedness, except for (a) Indebtedness permitted by clauses (xi), (ii), (iii), (iv), (vii), (ix), and (xiv) of the defined term “Permitted Indebtedness”, (b) the conversion of Indebtedness into Equity Securities and the payment, not to exceed Fifty Thousand Dollars (other than as described $50,000), of cash in Section 6.01(blieu of fractional shares in connection with such conversion, (b) belowpurchase money Indebtedness pursuant to its then applicable payment schedule, (c) existing or committed on the Effective Date prepayment by any Subsidiary of (provided, that any i) intercompany Indebtedness owed by such Indebtedness that is owed Subsidiary to any person other than the Borrower and/or one Borrower, or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01(ii) and (y) any Permitted Refinancing Indebtedness incurred to Refinance if such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that Subsidiary is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e);
(b) Indebtedness created hereunder (including pursuant to Section 2.21Borrower, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that intercompany Indebtedness owed by any Loan Party such Subsidiary to any another Subsidiary that is not a Guarantor incurred pursuant Borrower or (iii) prepayment of intercompany Indebtedness owed by a Borrower to this Section 6.01(eanother Borrower, (d) payments made on Subordinated Indebtedness to the extent permitted under the relevant subordination agreement, (e) payments, deliveries and the performance of any other than intercompany current liabilities incurred obligation in the ordinary course respect of business Permitted Convertible Debt in connection accordance with the cash management, tax and accounting operations terms of the Borrower indenture governing such Permitted Convertible Debt and the Subsidiaries) shall be subordinated in right of payment subject to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
restrictions set forth in Section 7.24, or (f) Indebtedness as otherwise permitted hereunder or approved in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring writing by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;Agent.
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, provided that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 2.0 million individually or $10.0 million in the aggregate shall only be permitted under this clause (a)(i) to the extent such Indebtedness is set forth in on Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such IndebtednessIndebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with Holdings, the Borrower or any Subsidiary) and (ii) intercompany Indebtedness existing on the Closing Date; provided, provided that any Indebtedness outstanding pursuant to this clause (a) which is owed by of the Borrower or a Subsidiary Loan Party to any subsidiary of the Borrower Subsidiary that is not a Subsidiary Loan Party shall be subordinated in right of payment to the same extent required pursuant Secured Obligations on terms reasonably satisfactory to Section 6.01(e)the Administrative Agent;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Swap Agreements not entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings, the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided, that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of Holdings, the Borrower and the Subsidiaries, (i) Indebtedness of any Subsidiary that is not the Borrower or a Subsidiary Loan Party owing to Holdings, the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04(b) or (bb) and (ii) Indebtedness of the Borrower to any Subsidiary and Indebtedness of the Borrower or any Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Secured Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case outstanding on the Closing Date or otherwise provided in the ordinary course of business (whether or not consistent with past practice or industry practices) of the Borrower, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets after the Closing Date, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger, consolidation or amalgamation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, (X) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (Y) after giving effect to the incurrence or assumption of such Indebtedness, the Senior Secured Leverage Ratio on a Pro Forma Basis would not exceed 7.00 to 1.00;
(i) mortgage financings and other purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement and Capital Lease Obligations of the Borrower or any Subsidiary, in each case case, so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) after giving effect to the incurrence or assumption of such Indebtedness, the Senior Secured Leverage Ratio on a Pro Forma Basis would not exceed 7.00 to 1.00;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount at any time outstanding that does not exceed the greater of (X) $100 million and (Y) at the time of any incurrence under this paragraph (k), 100% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(l) [Reserved];
(m) Guarantees (i) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not the Borrower or a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(u)), and (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party; provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this paragraph (m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be subordinated to the Secured Obligations to at least the same extent such other Indebtedness is so subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, that in respect of the disposition of any business, assets or a Subsidiary, such Indebtedness shall not exceed the proceeds of such disposition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) other Indebtedness of the Borrower or any Subsidiary so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Total Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 6.25 to 1.00;
(s) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate amount not to exceed at any time outstanding the greater of (X) $40 million and (Y) at the time of any incurrence under this paragraph (s), 4.0% of the Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness constituting obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(u) Indebtedness representing deferred compensation to employees of Holdings, the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) [Reserved];
(i) Specified Prepayment Debt the Net Proceeds of which are applied solely to the prepayment of Loans in accordance with Section 2.12(b) and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(x) Indebtedness of Excluded Subsidiaries;
(y) Indebtedness consisting of Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent permitted by Section 6.06;
(z) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Acquisition, the Transactions and Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) Indebtedness of the Borrower or any Subsidiary to any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) of Holdings, the Borrower and its Subsidiaries;
(bb) Indebtedness incurred by the Borrower or any Subsidiary Loan Party that is either unsecured or secured by Liens ranking junior to or pari passu with the Liens securing the Secured Obligations and the aggregate principal amount of which does not exceed the Incremental Amount available at the time of such incurrence and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that
(i) the Administrative Agent shall have received a certificate signed by a Responsible Officer of the Borrower stating that other than in the case of any such Permitted Refinancing Indebtedness, the Borrower has elected to decrease the Incremental Amount as a result of the incurrence of such Indebtedness as contemplated by the definition of Incremental Amount; and
(ii) (1) the terms of such Indebtedness do not provide for any scheduled repayment, mandatory redemption or sinking fund obligations prior to the date that is six months following the then Latest Maturity Date (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default) and (2) the covenants, events of default, guarantees and other terms of such Indebtedness (other than pricing (provided that the “most-favored nation” provisions set forth in Section 2.22(a)(b)(v) in respect of any Incremental Term Loans or Other Term Loans shall be applicable to any Indebtedness bank loans incurred under this Section 6.01(bb) whose security ranks pari passu with the Term Loans and Revolving Facility Loans), redemption premiums and maturity), taken as a whole, are not more restrictive to the Borrower and the Subsidiaries than those set forth in this Agreement; provided that a certificate of the Chief Financial Officer of the Borrower delivered to the Administrative Agent in good faith at least three Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the Borrower has determined in good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing requirement;
(cc) to the extent constituting Indebtedness, (i) customary non-recourse carve-out guarantees or indemnities, (iii) completion guarantees and (iii) environmental guarantees or indemnities;
(dd) (x) Indebtedness of joint ventures and/or, without duplication, Indebtedness incurred on behalf of, or representing guarantees of Indebtedness of, joint ventures, of the Borrower or any Subsidiary not in excess, at any one time outstanding, of the greater of (X) $100 million and (Y) at the time of any incurrence pursuant to this paragraph (dd), 100% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(ee) Indebtedness, the proceeds of which are used to Refinance the Poconos Mortgage Loan and/or the TC/KC Mortgage Loans and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that, (x) in the event that the Poconos Mortgage Loan is so Refinanced, (i) the amount of Indebtedness incurred to Refinance the Poconos Mortgage Loan shall not exceed $91 million and (ii) Poconos becomes a Subsidiary Loan Party and (y) in the event that the TC/KC Mortgage Loans are so Refinanced, (i) the amount of Indebtedness incurred to Refinance the TC/KC Mortgage Loans shall not exceed $63 million and (ii) TC and/or KC, as applicable, become Subsidiary Loan Parties;
(ff) [Reserved];
(gg) Indebtedness or Disqualified Stock of the Borrower or any Subsidiaries not otherwise permitted hereunder in an aggregate principal amount or liquidation preference not greater than 100.0% of the net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity by Holdings or a Parent with the net cash proceeds from the issuance and sale by Holdings or a Parent of its Qualified Equity Interests or a contribution to its common equity (in each case, other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds are not included in the Cumulative Credit, are not used for exercise of the Cure Rights, are not used for purposes of clause (a) of the definition of Capital Expenditures, do not constitute Excluded Contributions, are not included in net proceeds for purposes of Section 6.06(c) and are not used to finance the payments or distributions in respect of any Junior Financing pursuant to Section 6.09(b)(i)(C);
(hh) Customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(ii) all premium (if any, including tender premiums), expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (hh) above. For purposes of determining compliance with this Section 6.01, 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 or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date tha
Appears in 1 contract
Indebtedness. IncurThe Parent and the Borrower will not, and will not permit any of their respective Subsidiaries (other than Immaterial Subsidiaries) to, create, incur, assume or permit to exist any Indebtedness, exceptother than:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary respect of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Obligations;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23existing as of the Closing Date which is identified in Item 8.2(b) and under of the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDisclosure Schedule;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(di) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business of the Borrower or any of its Subsidiaries (including open accounts extended by suppliers on normal trade terms in connection with purchases of goods and services which are not overdue for a period of more than 120 days or, if overdue for more than 120 days, as to which a dispute exists and adequate reserves in conformity with GAAP have been established on the cash management, tax and accounting operations books of the Borrower and the Subsidiariesor such Subsidiary), (ii) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, workers’ compensation claims, surety, statutory, bid bonds, or appeal bonds, surety bonds and completion guarantees and or reimbursement obligations with respect to self-insurance or similar obligations, in each case provided in the ordinary course of business and (iii) in respect of reimbursement or consistent indemnification obligations owed to (including in respect of letters of credit obtained for the benefit of) any Person with past practice respect to (x) workers’ compensation, health, disability or industry practicesother employee benefits or (y) property, including those casualty or liability insurance, provided by such Person to the Borrower or any of its Subsidiaries, in the case of each of clauses (x) and (y), in the ordinary course of business; but excluding (in the case of each of clauses (i), (ii) and (iii)) Indebtedness incurred through the borrowing of money or Contingent Liabilities in respect of Indebtedness so incurred;
(d) Indebtedness of the Borrower or any of its Subsidiaries (i) in respect of industrial revenue bonds or other similar governmental or municipal bonds, (ii) evidencing the deferred purchase price of newly acquired property or incurred to secure healthfinance repairs, safety improvements or additions to property, or the acquisition of property of the Borrower and environmental obligations its Subsidiaries (pursuant to purchase money mortgages or otherwise, whether owed to the seller or a third party) used in the ordinary course of business of the Borrower or consistent its Subsidiaries; provided, that, such Indebtedness is incurred within 120 days following the acquisition of such property, and (iii) in respect of Capitalized Lease Liabilities; provided that the aggregate amount of all Indebtedness outstanding pursuant to this clause shall not at any time exceed $35,000,000;
(e) Indebtedness of any Subsidiary of the Parent owing to the Parent or any of its other Subsidiaries, or Contingent Liabilities of the Parent or any of its Subsidiaries incurred with past practice respect to the Indebtedness of any other such Subsidiary, which Indebtedness
(i) shall, if payable to the Parent, the Borrower or industry practicesa Subsidiary Guarantor, be evidenced by one or more promissory notes in form and substance reasonably satisfactory to the Administrative Agent, duly executed and delivered in pledge to the Collateral Trustee Agent pursuant to a Loan Document, and shall not be forgiven or otherwise discharged for any consideration other than payment in full or in part in cash or pursuant to a Permitted Refinancing (provided that only the amount repaid in part shall be discharged); and
(ii) if (x) incurred by a Subsidiary (other than any CDC Subsidiary) of the Borrower that is not a Subsidiary Guarantor owing to an Obligor, or (y) a Contingent Liability incurred by an Obligor with respect to the Indebtedness of a Subsidiary (other than any CDC Subsidiary) of the Borrower that is not a Subsidiary Guarantor, shall not, in the case of both clauses (x) and (y) (when aggregated with the amount of Investments made by way of contributions to capital or purchases of Capital Securities by the Borrower and the Subsidiary Guarantors in Subsidiaries (other than any CDC Subsidiary) which are not Subsidiary Guarantors under clause (y) of the proviso to clause (e) of Section 8.5), less Investment Returns, exceed $20,000,000 in the aggregate at any time; and
(f) Indebtedness of San J▇▇▇ Advantage Homes, Inc. under Floor Plan Financing Lines in an aggregate amount not exceeding $50,000,000 at any time;
(g) Indebtedness arising from the honoring by a bank or other financial institution incurred in respect of Permitted Receivables Transactions;
(h) Indebtedness of a checkPerson existing at the time such Person became a Subsidiary of the Borrower, draft but only if such Indebtedness was not created or similar instrument drawn incurred in contemplation of such Person becoming such a Subsidiary and the aggregate outstanding amount of all Indebtedness existing pursuant to this clause does not exceed $25,000,000 at any time;
(i) Hedging Obligations of the Borrower or any of its Subsidiaries in respect of the Credit Extensions or otherwise entered into by the Borrower or such Subsidiary to hedge against insufficient funds interest rate or currency exchange rate fluctuations, in each case arising in the ordinary course of business or other cash management of the Borrower and its Subsidiaries and not for speculative purposes;
(j) Indebtedness in respect of netting services, overdraft protections and otherwise in each case incurred connection with deposit accounts;
(k) Indebtedness that is subordinated (on terms reasonably satisfactory to the Administrative Agent) to the Obligations in respect of the deferred portion of the purchase price of a Permitted Acquisition that does not require the payment of any cash interest or principal prior to six months after the maturity of the Term Loans (“Permitted Seller Debt”) and Indebtedness consisting of Deferred Acquisition Obligations; provided that any Deferred Acquisition Obligations are unsecured and subordinated in right of payment to the Obligations and on terms reasonably satisfactory to the Administrative Agent;
(l) other Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness of Foreign Subsidiaries owing to the Borrower or Subsidiary Guarantors) in an aggregate amount at any time outstanding not to exceed $25,000,000; and
(m) Permitted Refinancings of the Indebtedness listed above (other than Indebtedness of the type permitted under clause (a) hereof; provided that, in the ordinary course case of business;any Permitted Refinancing of any Indebtedness under the 2009 Notes, the Indebtedness refinancing or modifying the Indebtedness under the 2009 Notes shall not provide for any payments, repayments, purchases or repurchases of principal prior to the date that is seven and one-half years after the Closing Date; provided, however, that no Indebtedness otherwise permitted by clauses (d), (e)(ii), (f), (g), (h), (i), (k), (l) or (m) shall be assumed, created or otherwise incurred if a Default has occurred and is then continuing or would result therefrom.
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) of the Company or any Subsidiary existing or committed on the Effective Closing Date (provided, provided that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 10,000,000 shall be set forth in on Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Company or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eSubsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower Company or any Subsidiary pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.10;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Company or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower Company to any Subsidiary and of any Subsidiary to the Borrower Company or any other Subsidiary; provided, provided that (i) Indebtedness owed by of any Subsidiary that is not the Subsidiary Guarantor owing to the Loan Party Parties shall be subject to Section 6.04(a) and (ii) Indebtedness of the Company to any Subsidiary and Indebtedness of the Subsidiary Guarantor to any Subsidiary that is not a the Subsidiary Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment made expressly subject to the Loan Obligations under this Agreement on terms a note containing subordination provisions reasonably satisfactory to the Company and the Administrative Agent;
(fi) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business and (ii) ordinary course Guarantees and any related credit support or consistent with past practice suretyship arrangements so long as the same do not constitute Indebtedness for borrowed money or industry practicesa Guarantee thereof;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of notification to the obligor by such bank or other financial institution of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged into or consolidated with the Company or any Subsidiary after the Closing Date and Indebtedness assumed or incurred in connection with such acquisition, merger or consolidation and where such acquisition, merger or consolidation is permitted by this Agreement provided that the aggregate amount of such Indebtedness (together with the aggregate amount of Indebtedness outstanding pursuant to this paragraph (h) and paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03 would not exceed (x) the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such acquisition, merger or consolidation, such assumption or such incurrence, as applicable for which financial statements have been delivered pursuant to Section 5.04 plus (y) an amount of Indebtedness for which, after giving effect to such issuance, incurrence or assumption, the Company would be in Ratio Compliance; provided, further (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) immediately after giving effect to such acquisition, merger or consolidation, the assumption and incurrence of any Indebtedness and any related transactions, the Company shall be in Pro Forma Compliance and (C) to the extent such Indebtedness is incurred in contemplation of such acquisition, merger or consolidation, it shall constitute Permitted Additional Debt; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness.
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Company or any Subsidiary prior to or within [*] days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing Indebtedness in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, of such Indebtedness (together with the aggregate principal amount of Indebtedness outstanding pursuant to this paragraph (i) and paragraph (h) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03 would not exceed (x) the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 plus (y) any additional amounts, so long as after giving effect to the issuance or incurrence of such Indebtedness the Company is in Ratio Compliance;
(j) Capital Lease Obligations incurred by the Company or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other Indebtedness of the Company or any Subsidiary, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(l) Indebtedness of the Company pursuant to (i) the Senior Unsecured Notes Documents in an aggregate principal amount not in excess of $[*], and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(m) Guarantees (i) by the Subsidiary Guarantor of the Indebtedness of the Company described in paragraph (l) of this Section 6.01, (ii) by the Borrower or the Subsidiary Guarantor of any Indebtedness of the Subsidiary Guarantor permitted to be incurred under this Agreement, (iii) by the Borrower or the Subsidiary Guarantor of Indebtedness otherwise permitted hereunder of any Subsidiary that is not the Subsidiary Guarantor to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iv) by any Subsidiary that is not the Subsidiary Guarantor of any Indebtedness of any other Subsidiary or any Loan Party permitted to be incurred under this Agreement; provided that Guarantees by any Loan Party or Subsidiary under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Company or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case case, incurred or assumed in connection with any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) in the ordinary course of business;
(p) [reserved];
(q) Indebtedness consisting of (i) the financing of insurance premiums, or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(r) Indebtedness consisting of Permitted Ratio Debt and Permitted Refinancing Indebtedness in respect thereof so long as (i) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (ii) (A) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Loan-to- Value Ratio on a Pro Forma Basis is equal to or less than [*] to 1.0, or (B) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Fixed Charge Coverage Ratio on a Pro Forma Basis at least [*] to 1.0;
(s) Indebtedness of Subsidiaries that are not the Subsidiary Guarantor in an aggregate amount not to exceed the greater of $[*] and [*]% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations of the Company or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(u) Indebtedness representing deferred compensation to employees of the Company or any Subsidiary incurred in the ordinary course of business;
(v) [reserved];
(w) Indebtedness of any New Vessel Subsidiary under a New Vessel Financing (in an initial aggregate principal amount not to exceed [*]% of the purchase price (as adjusted from time to time to give effect to any change orders or other modifications) of the purchased Vessel and [*]% of any related export credit insurance premium) and Guarantees thereof by the Company;
(x) Indebtedness of the Company and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the Administrative Agent or one or more of the Lenders and (in each case) established for the Company’s and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(a) and in the Security Documents (it being understood, however, that for a period of 30 consecutive days during each fiscal year of the Company the outstanding principal amount of Indebtedness under the Overdraft Line shall not exceed the greater of $[*] and [*]% of Consolidated Total Assets);
(y) intercompany Indebtedness in connection with any Permitted Vessel Transfer;
(z) [reserved];
(aa) [reserved];
(bb) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in excess of the greater of $[*] and [*]% of Consolidated Total Assets as of the fiscal quarter immediately prior to the date of such Investment for which financial statements have been delivered pursuant to Section 5.04;
(cc) all premium (if any), interest (including post‑petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (bb) above. For purposes of determining compliance with this Section 6.01, (x) 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 or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date that such Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and 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 (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing and (y) (A) Indebtedness need not be permitted solely by reference to one category of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (cc) but may be permitted in part under any combination thereof, (B) in the event that an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Indebtedness (or any portion thereof) described in Sections 6.01(a) through (cc), the Company may, in its sole discretion, divide, classify or reclassify, or later divide, classify or reclassify (as if incurred at such later time), such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.01 and at the time of incurrence, division, classification or reclassification will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Indebtedness under this Agreement that is outstanding on the Closing Date shall at all times be deemed to have been incurred pursuant to clause (b) of this Section 6.01 and (C) in connection with (1) the incurrence of revolving Indebtedness under this Section 6.01 or (2) any commitment relating to the incurrence of Indebtedness under this Section 6.01 and the granting of any Lien to secure such Indebtedness, the Company or applicable Subsidiary may designate the incurrence of such Indebtedness and the granting of such Lien therefor as having occurred on the date of first incurrence of such revolving loan Indebtedness or commitment (such date, the “Deemed Date”), and from and after the Deemed Date such Indebtedness shall be deemed to be outstanding for purposes of this Section 6.01 and 6.02 so long as the commitments with respect to such Indebtedness remain in effect and any related subsequent actual incurrence and the granting of such Lien therefor will be deemed for purposes of this Section 6.01 and Section 6.02 of this Agreement to have been incurred or granted on such Deemed Date. With respect to any Indebtedness that was permitted to be incurred hereunder on the date of such incurrence, any Increased Amount of such Indebtedness shall also be permitted hereunder after the date of such incurrence.
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Indebtedness. IncurIntermediate Dutch Holdings shall not, nor shall it permit any of its Restricted Subsidiaries to create, incur, assume or permit otherwise become or remain liable with respect to exist any Indebtedness, except:
(a) the Secured Obligations (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that including any such Indebtedness that is owed to Additional Term Loan and/or any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eAdditional Revolving Loan);
(b) Indebtedness created hereunder of (including pursuant i) Intermediate Dutch Holdings to Holdings and/or any Restricted Subsidiary and/or (ii) any Restricted Subsidiary to Holdings, Intermediate Dutch Holdings and/or any other Restricted Subsidiary; provided, that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Loan Party, the related Investment is permitted under Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness6.06;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes[reserved];
(d) (i) Indebtedness owed to arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including obligations contingent earn-out obligations) incurred in respect connection with the Transactions, any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock or any other Investment, and (ii) Indebtedness arising from guaranties, letters of credit or credit, bank guarantees guaranties, surety bonds, performance bonds or similar instruments for securing the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower performance of Intermediate Dutch Holdings or any Subsidiary, such Restricted Subsidiary pursuant to reimbursement or indemnification obligations to any such person, in each case in the ordinary course of business or consistent with past practice or industry practicesagreement;
(e) Indebtedness of the Borrower to Intermediate Dutch Holdings and/or any Restricted Subsidiary and (i) as a result of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(etenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of Intermediate Dutch Holdings and/or any Restricted Subsidiary in respect of Banking Services and/or otherwise in connection with Cash management and Deposit Accounts;
(g) (other than intercompany current liabilities i) Guarantees by Intermediate Dutch Holdings and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of Intermediate Dutch Holdings and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with the cash management, tax such goods and accounting operations of the Borrower services and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(fiii) Indebtedness in respect of performance bondsletters of credit, bid bondsbankers’ acceptances, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft guaranties or similar instrument drawn against insufficient funds in the ordinary course of business instruments supporting trade payables, warehouse receipts or other cash management services, in each case incurred similar facilities entered into in the ordinary course of business;
(h) Guarantees by Intermediate Dutch Holdings and/or any Restricted Subsidiary of Indebtedness or other obligations of Intermediate Dutch Holdings, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) (A) Indebtedness of Intermediate Dutch Holdings and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date; provided, that any such Indebtedness or commitment having an outstanding principal amount in excess of $10,000,000 shall be described on Schedule 6.01 and (B) intercompany Indebtedness outstanding on the Closing Date;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided, that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $246,000,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of Intermediate Dutch Holdings and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of Intermediate Dutch Holdings and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of Intermediate Dutch Holdings and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $123,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary and/or Indebtedness assumed in connection with any acquisition or similar Investment; provided, that:
(i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in contemplation of the applicable acquisition or similar Investment, and
(ii) after giving effect to such Indebtedness on a Pro Forma Basis, either:
(A) (1) if such Indebtedness is First Lien Debt, the First Lien Net Leverage Ratio does not exceed the First Lien Net Leverage Ratio as of the last day of the most recently ended Test Period, (2) if such Indebtedness is Junior Lien Debt, the Secured Net Leverage Ratio does not exceed the Secured Net Leverage Ratio as of the last day of the most recently ended Test Period or (3) if such Indebtedness is not secured by the Collateral or is unsecured, the Total Net Leverage Ratio does not exceed the Total Net Leverage Ratio as of the last day of the most recently ended Test Period;
(B) Intermediate Dutch Holdings is in compliance with Section 6.10 hereof (whether or not then in effect) as of the last day of the most recently ended Test Period; or
(C) such Indebtedness is in an aggregate principal amount outstanding not to exceed the greater of $100,000,000 and 20% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness issued by Intermediate Dutch Holdings or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, Intermediate Dutch Holdings or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (r), (u), (w), (x), (y), (z), (hh) and/or (ii) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of, and commitments in respect of, the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided, that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02);
(ii) in the case of Refinancing Indebtedness with respect to clauses (a), (w) and/or (z) (other than (I) Customary Bridge Loans and (II) Refinancing Indebtedness that the Borrower Representative elects to apply to the Inside Maturity Amount), such Indebtedness (other than revolving indebtedness) has (A) a final maturity equal to or later than the Latest Term Loan Maturity Date and (B) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the outstanding Term Loans at such time;
(iii) the terms of any Replacement Debt with an original principal amount in excess of the Threshold Amount (excluding, to the extent applicable, pricing (including any “MFN” provision), fees, premiums, rate floors, optional prepayment, funding discounts, maturity, amortization schedule, redemption terms or subordination terms and security), are not, taken as a whole (as determined by the Borrower Representative in good faith), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenant or any other provision applicable only to periods after the applicable maturity date of the debt then being refinanced as of such date, (B) any covenant or provision which constitutes a then-current market term for the applicable type of Indebtedness (as determined by the Borrower Representative in good faith), or (C) any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)), it being understood and agreed that if any Replacement Debt that constitutes a revolving facility includes a financial covenant, the requirement set forth in this clause (iii) shall be satisfied if such financial covenant is added to this Agreement for the benefit of the then-existing Revolving Facility but not any then-existing Term Facility);
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n)(ii)(C), (r), (u), (w) (solely as it relates to the Shared Incremental Amount), (x), (y), (z) (solely as it relates to the Shared Incremental Amount), (hh) and/or (ii) of this Section 6.01, the incurrence thereof shall be without duplication of any amount outstanding in reliance on the relevant clause such that the amount available under the relevant clause shall be reduced by the amount of the applicable Refinancing Indebtedness;
(v) except in the case of Refinancing Indebtedness constituting Replacement Debt, (A) (1) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and (2) either (x) if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Tranche B-3 Term Loans, the Eleventh Amendment Dollar Refinancing Term Loans and the Eleventh Amendment Euro Refinancing Term Loans, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Tranche B-3 Term Loans, the Eleventh Amendment Dollar Refinancing Term Loans and the Eleventh Amendment Euro Refinancing Term Loans on terms not materially less favorable (as determined by the Borrower Representative in good faith), taken as a whole, to the Lenders than those (I) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or (II) set forth in any relevant Intercreditor Agreement or (y) the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)); it being understood that the proceeds of any such Refinancing Indebtedness may be funded into Escrow pursuant to customary (in the good faith determination of the Borrower Representative) escrow arrangements, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that (1) any entity that was a guarantor in respect of the relevant refinanced Indebtedness may be the primary obligor in respect of the refinancing Indebtedness, and any entity that was the primary obligor in respect of the relevant refinanced Indebtedness may be a guarantor in respect of the refinancing Indebtedness and (2) the obligation of any Person with respect to any Escrow arrangement into which the proceeds of such Refinancing Indebtedness are deposited shall not constitute a guarantee) and (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)); and
(vi) in the case of Refinancing Indebtedness constituting Replacement Debt, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any asset that does not constitute Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Restricted Subsidiary of Intermediate Dutch Holdings other than one or more Loan Parties and (D) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement;
(q) [reserved];
(r) Indebtedness of Intermediate Dutch Holdings and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by Intermediate Dutch Holdings and/or its Restricted Subsidiaries from (i) the issuance or sale of Qualified Capital Stock or (ii) any Cash contribution to its common equity with the Net Proceeds from the issuance and sale by any Parent Company of its Qualified Capital Stock or a contribution to the Qualified Capital Stock of any Parent Company, in each case, (A) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, Intermediate Dutch Holdings or any of its Restricted Subsidiaries, (B) to the extent the relevant Net Proceeds have not otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder in reliance on a provision of Section 6.06, Section 6.04(a) or Section 6.04(b), as applicable, with respect to which such Net Proceeds were required to permit the relevant transaction and (C) other than any Cure Amount and/or any Available Excluded Contribution Amount (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of Intermediate Dutch Holdings and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of Intermediate Dutch Holdings and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of any Parent Company, Intermediate Dutch Holdings and/or a
Appears in 1 contract
Indebtedness. IncurCreate, createincur, assume or permit suffer to exist any Indebtedness, except:
(a) (xi) Indebtedness of the Loan Parties under this Agreement (including Indebtedness in respect of Letters of Credit or any Incremental Facility) and Permitted Refinancings thereof;
(b) Indebtedness of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to any other than as described in Section 6.01(bRestricted Subsidiary; provided that (i) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower a Person that is not a Loan Party shall be unsecured and subordinated in right of payment to the same extent required pursuant payment in full of the Obligations on terms reasonably satisfactory to Section 6.01(e);
the Administrative Agent and (bii) Indebtedness created hereunder (including pursuant of Restricted Subsidiaries that are not Subsidiary Guarantors to Section 2.21, Section 2.22 and Section 2.23) and the Borrower or any Subsidiary Guarantor must also be permitted under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtednesssubsection 8.7;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements of its Restricted Subsidiaries in respect of any foreign currency exchange contracts, interest rate swap arrangements or other derivative contracts or transactions, other than any such contracts, arrangements or transactions entered into by the Borrower or any of its Restricted Subsidiaries for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiaryof its Restricted Subsidiaries consisting of reimbursement obligations under surety, pursuant to reimbursement or indemnification obligations to such personindemnity, performance, release and appeal bonds, in each case required in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations enforcement of rights or claims of the Borrower and the its Restricted Subsidiaries) shall be subordinated , and letters of credit obtained in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred support thereof in the ordinary course of business;
(e) existing Indebtedness of the Borrower or any of its Restricted Subsidiaries listed on Schedule 8.2 hereto including any extension or renewals or refinancing thereof, provided the principal amount thereof is not increased;
(i) any Indebtedness of any Person that becomes a Restricted Subsidiary in connection with a Permitted Acquisition after the Closing Date, (ii) any Indebtedness of any Person that is assumed by a Restricted Subsidiary in connection with an acquisition of assets by such Restricted Subsidiary in connection with a Permitted Acquisition after the Closing Date, and (iii) any Permitted Refinancing in respect of any Indebtedness set forth in the immediately preceding clauses (i) and (ii); provided that (x) in the case of clauses (i) and (ii) such Indebtedness exists at the time of such Permitted Acquisition and is not created in contemplation of or in connection with such Permitted Acquisition, (y) the aggregate principal amount of all Indebtedness of Restricted Subsidiaries that are not Subsidiary Guarantors outstanding under this clause (f) shall not exceed $75,000,000 at any time and (z) no Group Member (other than such Person that becomes a Restricted Subsidiary of the Borrower or the Restricted Subsidiary, as the case may be, that so assumes such Person's Indebtedness) shall guarantee or otherwise become liable for the payment of such Indebtedness;
(g) letters of credit of the Borrower and its Restricted Subsidiaries; provided that the aggregate face amount of such letters of credit shall not exceed $10,000,000 outstanding at any time;
(h) Indebtedness of the Borrower in respect of the Senior Notes outstanding on the Restatement Effective Date and any Permitted Refinancing thereof;
(i) Indebtedness consisting of promissory notes issued by the Borrower and its Subsidiaries to current or former directors, officers, employees, members of management or consultants of such person (or their respective estate, heirs, family members, spouse or former spouse) to finance the repurchase of shares of Parent permitted by subsection 8.8;
(j) (i) Indebtedness of the Borrower or any Restricted Subsidiary (including Capital Lease Obligations) incurred to finance the acquisition, construction, repair, replacement, lease or improvement of fixed or capital assets (or the purchase of the Capital Stock of any Person owning such assets) in an amount not to exceed $100,000,000 at any time outstanding; provided that such Indebtedness is incurred prior to or within 365 days after the applicable acquisition, construction, repair, replacement or improvement, (ii) Indebtedness arising out of sale-leaseback transactions permitted hereunder and (iii) any Permitted Refinancing of any Indebtedness set forth in the immediately preceding clauses (i) and (ii);
(k) cash management obligations and other Indebtedness of the Borrower and any Restricted Subsidiaries in respect of netting services, overdraft protections, employee credit card programs, automatic clearing house arrangements and other similar arrangements in each case in connection with deposit accounts;
(l) unsecured Indebtedness arising from agreements of the Borrower and its Restricted Subsidiaries providing for seller financing, deferred purchase price, contingent liabilities in respect of any indemnification obligations, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with any Business Acquisition; provided, however, that (i) such Indebtedness is not reflected on the balance sheet of the Borrower or any of its Restricted Subsidiaries prepared in accordance with GAAP (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of this clause (i)), (ii) with respect to a disposition, the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Borrower and its Restricted Subsidiaries in connection with such disposition and (iii) as of the date of incurrence of any Indebtedness under this clause (l), the Consolidated Total Net Leverage Ratio (determined (i) on a pro forma basis, after giving effect to the incurrence of such Indebtedness, and (ii) excluding the proceeds of such Indebtedness in the calculation of unrestricted cash and Cash Equivalents) of the Borrower and the Subsidiary Guarantors as of such date) is less than or equal to 6.25 to 1.00;
(m) Indebtedness of the Borrower or any of its Restricted Subsidiaries consisting of (i) financing of insurance premiums or (ii) take-or- pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(n) Indebtedness of the Borrower or any of its Restricted Subsidiaries incurred pursuant to the GE Receivables Facility or any other Receivables Facility, in an aggregate amount outstanding not to exceed $50,000,000 at any time;
(o) Indebtedness of the Borrower or any of its Restricted Subsidiaries; provided that, as of the date of incurrence of any such Indebtedness, the Consolidated Total Net Leverage Ratio (determined (i) on a pro forma basis, after giving effect to the incurrence of such Indebtedness, and (ii) excluding the proceeds of such Indebtedness in the calculation of unrestricted cash and Cash Equivalents) of the Borrower and the Subsidiary Guarantors as of such date is less than or equal to 6.25 to 1.00;
(p) other unsecured Indebtedness of the Borrower or any of its Restricted Subsidiaries in an aggregate principal amount not to exceed, at any time, the sum of (i) $100,000,000 and (ii) the aggregate amount of cash capital contributions (other than any Specified Equity Contribution and any cash capital contributions included in the calculation of the Available Amount to the extent such cash capital contributions have been applied pursuant to the definition of Available Amount to make an Investment pursuant to subsection 8.7(r) or a Restricted Payment pursuant to subsection 8.8(b) received by the Borrower after the Closing Date; and
(q) junior lien secured or unsecured notes (such notes, “Incremental Notes”); provided that (A) the aggregate initial principal amount of all Incremental Notes shall not exceed (i) together with the aggregate initial principal amount of all Incremental Facilities incurred pursuant to Section 4.25, $200,000,000 plus (ii) an additional amount if, after giving effect to such additional amount, on a pro forma basis the Consolidated Senior Secured Leverage Ratio as of the last day of the most recently ended fiscal quarter does not exceed 4.75:1.00 (assuming all such additional amounts were senior secured debt, whether or not such debt is senior or secured) and (B) such Incremental Notes do not mature on or prior to the date that is 91 days following the final stated maturity date of, or have a shorter weighted average life than, the Term Loans;
Appears in 1 contract
Sources: Credit Agreement
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 2.21 and Section 2.23any increase to the principal amount of the Indebtedness created hereunder as a result of a payment of PIK Interest) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit K hereto or on substantially identical subordination terms or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(h) Indebtedness of Redbox Entertainment and its Subsidiaries that is incurred to fund any production, acquisition, exploitation, development and protection of Redbox Entertainment IP (an “ Original Content Financing”) in an aggregate outstanding principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(h), would not exceed $40,000,000 at any time, which Original Content Financing may be guaranteed by an affiliate of Holdings; provided that such Original Content Financing may not be guaranteed by, or have recourse to, Holdings, the Borrower or its Subsidiaries (other than Redbox Entertainment and its Subsidiaries); provided, further, that immediately prior to, and after giving effect to the incurrence of such Indebtedness, no Default or Event of Default shall have occurred and be continuing or would result therefrom;
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (Redbox Entertainment Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposesSwap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (that, other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash managementmanagement operations of Holdings and the subsidiaries to finance working capital needs of the subsidiaries, tax (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties shall be subject to Section 6.04(b) and accounting operations (ii) Indebtedness of the Borrower and the Subsidiaries) shall to any Subsidiary that is not a Subsidiary Loan Party shall, if legally permissible, be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness (including obligations in respect of performance bondsletters of credit and bank guarantees) in respect of performance, bid bondsbid, appeal bonds, and surety bonds and completion guarantees and similar obligations, in each case provided by the Borrower or any of its Subsidiaries in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred services in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or of an entity merged into or consolidated or amalgamated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger, consolidation or amalgamation and is not created in contemplation of such event and where such acquisition, merger, consolidation or amalgamation is permitted by this Agreement; provided, (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (B) immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the assumption and incurrence of any Indebtedness and any related transactions, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 4.25 to 1.00 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(i) (i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the construction, acquisition, lease or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such construction, acquisition, lease or improvement, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, together with the Remaining Present Value of outstanding leases permitted under Section 6.03, would not exceed the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding that at the time of, and after giving effect to, the incurrence thereof, would not exceed the greater of $550.0 million and 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04 and any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(l) Indebtedness of the Borrower pursuant to (i) the Senior Unsecured Notes in an aggregate principal amount that is not in excess of $1,250 million (plus any interest and premium (including tender premiums) paid by increases to principal) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(m) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in Section 6.01(l), (ii) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary Loan Party of Indebtedness of Holdings or any Subsidiary that is not a Subsidiary Loan Party that is otherwise permitted hereunder to the extent such Guarantees are permitted by Section 6.04(b), (iv) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party and (v) by the Borrower or any Subsidiary Loan Party of Indebtedness of Subsidiaries that are not Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s) and to the extent such Guarantees are permitted by Section 6.04(b); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations (other than obligations in respect of other Indebtedness) and trade letters of credit in the ordinary course of business;
(p) Indebtedness supported by a letter of credit, in a principal amount not in excess of the stated amount of such letter of credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) other Indebtedness incurred by the Borrower or any Subsidiary Loan Party so long as (A) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than 4.25 to 1.00 and (ii) Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness of Subsidiaries that are not Loan Parties in an aggregate amount not to exceed at any time outstanding the greater of $330 million and 3.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(u) Indebtedness representing deferred compensation to employees and directors of the Borrower or any Subsidiary incurred (i) in the ordinary course of business or (ii) in connection with the Transactions (including as a result of the cancellation or vesting of outstanding options and other equity-based awards in connection therewith);
(v) Indebtedness in connection with Permitted Securitization Financings;
(w) Indebtedness of the Borrower and the Subsidiaries incurred under overdraft, lines of credit or cash management facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the Administrative Agent or one or more of the Lenders and (in each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations (such Indebtedness, the “Cash Management Line”), which Indebtedness may be secured as, but only to the extent, provided in Section 6.02(b) and in the Security Documents;
(x) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in excess, at any one time outstanding, of the greater of $550.0 million or 5.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(y) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(z) Indebtedness consisting of obligations of the Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such person in connection with the Transactions and Permitted Business Acquisitions or any other Investment permitted hereunder;
(aa) Indebtedness incurred in connection with notes and earn-out obligations payable to sellers in joint ventures and Permitted Business Acquisitions; provided that required payments in respect thereof shall not exceed 40% of the amount of Permitted Business Acquisitions for such year;
(bb) Indebtedness in respect of Arbitrage Programs in an aggregate principal amount not to exceed the sum of (i) $10.0 million and (ii) the aggregate amount of Permitted Investments related thereto from time to time;
(cc) all premiums (including tender premiums, if any), defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (bb) above;
(dd) Indebtedness of the Borrower pursuant to (i) the First and a Half Lien Refinancing Notes in an aggregate principal amount that is not in excess of $196.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), (ii) the First Lien Notes in an aggregate principal amount that is not in excess of $593.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), and (iii) in each case, any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(ee) Indebtedness pursuant to any First Lien Refinancing Notes; provided that the Borrower shall Refinance Term A Loans with an amount not less than the First Lien Net Proceeds of any First Lien Refinancing Notes to the extent required by Section 2.11(g);
(i) Junior Refinancing Indebtedness; provided that (x) 100% of the Net Cash Proceeds of such Junior Refinancing Indebtedness must be used only by the Borrower to Refinance all or any portion of the Senior Unsecured Notes or any other Junior Financing (or all or any portion of any Permitted Refinancing Indebtedness in respect thereof) and (ii) any refinancing, refunding, renewal, replacement, defeasance or extension of any Junior Refinancing Indebtedness; provided that in connection with any such refinancing, refunding, renewal, replacement, defeasance or extension (in each case, a “refinancing,” with correlatives of such term having a similar meaning), (x) the principal amount of any such refinancing Indebtedness is not greater than the principal amount of the Indebtedness being refinanced outstanding immediately prior to such refinancing (plus unpaid accrued interest and premium (including tender premiums) thereon and underwriting discounts, defeasance costs, fees, commissions and expenses relating to such refinancing Indebtedness), (y) such refinancing Indebtedness otherwise complies with the definition of Junior Refinancing Indebtedness and (z) such refinancing Indebtedness is secured on a pari passu basis with or junior to the Indebtedness being refinanced (or, in the event the Indebtedness being refinanced is unsecured, such refinancing Indebtedness shall be unsecured);
(gg) Indebtedness of the Borrower in respect of one or more series of senior unsecured notes or senior secured notes that will be secured by all or a portion of the Collateral on a pari passu or junior basis with the Obligations, that are issued or made in lieu of loans under the Incremental Term Loans and Permitted Refinancing Indebtedness in respect thereof (the “Additional Notes”); provided that (A) such Additional Notes are not scheduled to mature prior to the date that is 91 days after the Term A Facility Maturity Date, (B) the aggregate principal amount of all Additional Notes issued pursuant to this clause (gg) shall not exceed (x) $500 million less (y) the aggregate principal amount (i) of all loans under the Incremental Term Loans made after the Closing Date pursuant to Section 2.20 and clause (x) of the definition of “Incremental Amount” and (ii) of all Incremental Term Loan Commitments and Incremental Revolving Facility Commitments made after the Closing Date (as such terms are defined in the Existing Credit Agreement) pursuant to Section 2.20 of the Existing Credit Agreement and clause (x) of the definition of “Incremental Amount” thereunder, (C) such Additional Notes shall not be subject to any Guarantee by any Subsidiary other than a Loan Party, (D) in the case of Additional Notes that are secured, the obligations in respect thereof shall not be secured by any Lien on any asset of Holdings, the Borrower or any of its Subsidiaries other than any asset constituting Collateral, (E) if such Additional Notes are secured, the security agreements relating to such Additional Notes shall be substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (F) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence (provided that in the event that the Additional Notes are used to finance a Permitted Business Acquisition, the condition required by this clause (F) shall be made as of the time of the execution of the relevant acquisition agreement related to such Permitted Business Acquisition) and (G) if such Additional Notes are secured, such Additional Notes shall be subject to an intercreditor agreement in form and substance reasonably acceptable to the Administrative Agent;
(hh) Permitted First Lien Indebtedness and Permitted Refinancing Indebtedness incurred to Refi
Appears in 1 contract
Indebtedness. IncurThe Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) (x) the Indebtedness (other than as described in Section 6.01(b) below) existing or committed on created hereunder and under the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Five Year Facility;
(b) the Indebtedness created hereunder (including under the notes to be issued pursuant to Section 2.21the Notes Offering or, Section 2.22 and Section 2.23) and if applicable, the Indebtedness under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessBridge Facility;
(c) Indebtedness existing on the date hereof and set forth in Schedule 6.01, together with any existing Guarantees of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposessuch Indebtedness;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that ;
(e) Guarantees by the Borrower of Indebtedness owed of any Subsidiary and by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations Indebtedness of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentor any other Subsidiary;
(f) Indebtedness of the Borrower or any Subsidiary as an account party in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course trade letters of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicescredit;
(g) Indebtedness arising from to the honoring by a bank extent the net cash proceeds of which are utilized to permanently prepay Loans in accordance with Section 2.08 or other financial institution of a check, draft Term Loans or similar instrument drawn against insufficient funds Revolving Loans (each as defined in the ordinary course Five Year Facility) outstanding under the Five Year Facility;
(h) Indebtedness which may be deemed to exist pursuant to any surety, indemnity, appeal, performance and other obligations of business or other cash management serviceslike nature and guarantees thereof, in each case incurred securing obligations not constituting Indebtedness for borrowed money;
(i) Indebtedness that may exist in respect of deposits or payments made by customers or clients;
(j) one or more Accounts Receivable Financing Programs, provided that (i) the size of such Accounts Receivable Financing Programs shall not, in the ordinary course aggregate, exceed $500,000,000 (five hundred million dollars) (regardless of businessthe amount of accounts receivable securitized or collateralized thereunder) [and (ii)
(A) the aggregate face amount of accounts receivable of the Borrower and its Subsidiaries held at any time by a trust, partnership, corporation or other entity to which such accounts receivable have been transferred pursuant to Accounts Receivable Financing Programs, plus (without duplication) (B) the amount of Indebtedness outstanding at such time pursuant to Accounts Receivable Financing Programs under which the Borrower or any of its Subsidiaries incurs Indebtedness secured by their accounts receivable does not exceed [50% (fifty percent)] of the aggregate face amount of all accounts receivable of the Borrower and its Subsidiaries at such time];
(k) Indebtedness of the Borrower or any Subsidiary not otherwise permitted by paragraphs (a) through (j) of this Section 6.01 in an aggregate principal amount not exceeding 10% (ten percent) of Consolidated Net Tangible Assets, as defined in Section 6.10;
(l) extensions, renewals or refinancings of Indebtedness under paragraphs (a) through (i) of this Section 6.01 so long as (1) such Indebtedness ("Refinancing Indebtedness") is in an aggregate principal amount not greater than the aggregate principal amount of, and unpaid interest on, the Indebtedness being extended, renewed or refinanced plus the amount of any premiums required to be paid thereon and fees and expenses associated therewith, (2) such Refinancing Indebtedness has a later or equal final maturity and a longer or equal weighted average life than the Indebtedness being extended, renewed or refinanced, and (3) the interest rate applicable to such Refinancing Indebtedness shall be at a rate no higher than the rate applicable to the Indebtedness that is the subject of the extension, renewal or refinancing; and
(m) all premiums (if any), interest (including post-petition interest), fee, expenses, indemnities, charges and additional or contingent interest on obligations described in paragraphs (a) through (l) of this Section 6.01.
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of Person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessSecured Obligations;
(c) Indebtedness of the Borrower or any Subsidiary and the Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, in each case in the ordinary course of business or consistent with past practice or industry practicessuch obligations are reimbursed not later than thirty (30) days following such incurrence;
(e) Indebtedness of the Borrower to or any Subsidiary and of any Subsidiary owed to the Borrower or any other Subsidiary; providedSubsidiary to the extent permitted by Section 6.04, provided that Indebtedness owed by of any Loan Party owed to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) Loan Party (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred services in the ordinary course of business, provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within three (3) Business Days of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within sixty (60) days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Effective Date or a Person merged into or consolidated with the Borrower or any Subsidiary after the Effective Date and Indebtedness assumed in connection with the acquisition of assets after the Effective Date, which Indebtedness, in each case, exists IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "" "" IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" "" ""
Appears in 1 contract
Sources: Credit Agreement (Fathom Digital Manufacturing Corp)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness existing on the Closing Date (other than as described in Section 6.01(b) below) existing any Indebtedness of Parent or committed on the Effective Date (provided, any Subsidiary owed to Parent or any Subsidiary); provided that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 2,700,000 individually or $13,500,000 in the aggregate shall be permitted under this clause (a)(i) only if such Indebtedness is set forth in on Schedule 6.01) 6.01 and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause permitted by the foregoing subclause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(ei);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary pursuant (if any) deemed to Hedging exist with respect to Swap Agreements not entered into for non-speculative purposespurposes and under Cash Management Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance to the Borrower Parent or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent business; provided, that upon the incurrence of Indebtedness with past practice or industry practicesrespect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower Parent owed to any Subsidiary and of any Subsidiary owed to the Borrower Parent or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower Parent and the Subsidiaries, (i) any Indebtedness owed by a Loan Party to a Subsidiary that is not a Loan Party shall be subordinated in right of payment evidenced by (x) the Global Intercompany Note or (y) another promissory note containing substantially similar subordination provisions and (ii) any Indebtedness owed by a Subsidiary that is not a Loan Party to a Loan Party may be evidenced by the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentGlobal Intercompany Note;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case outstanding on the Closing Date or otherwise provided in the ordinary course of business (whether or not consistent with past practice or industry practices) of Parent and the Subsidiaries, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred services in the ordinary course of business;
(h) (A) Indebtedness (including Acquired Indebtedness) of Parent or any Subsidiary; provided that (i) no Event of Default shall have occurred or be continuing or would result from the incurrence or existence of such additional Indebtedness or from the application of proceeds thereof, (ii) the Total Net Leverage Ratio shall not exceed 5.00:1.00 or, in the case of Acquired Indebtedness, the Total Net Leverage Ratio immediately prior thereto, in each case calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period, (iii) other than in the case of Acquired Indebtedness, the final maturity date of such Indebtedness shall be no earlier than six months following the then Latest Maturity Date (other than customary offers to repurchase upon a change of control, asset sale or event of loss (so long as, in the case of a change of control offer to purchase provision, a change of control would not be triggered thereunder unless a Change of Control is also triggered hereunder, and in the case of an asset sale or event of loss offer to purchase provision, the net proceeds of any asset sale are permitted to be applied to the prepayment of the Loans first or, in the case of Indebtedness secured by Other First Liens, on a not less than ratable basis than such Indebtedness) and customary acceleration rights after an event of default), (iv) other than in the case of Acquired Indebtedness, the Weighted Average Life to Maturity of such Indebtedness shall not be shorter than the remaining Weighted Average Life to Maturity of the existing Term A Loans or the existing Incremental Term B Loans and (v) other than in the case of Acquired Indebtedness, the covenants, events of default, guarantees and other terms of such Indebtedness (other than pricing and redemption premiums), taken as a whole, shall not be more restrictive to Parent and the Subsidiaries than those set forth in this Agreement; provided that a certificate of a Financial Officer of Parent delivered to the Administrative Agent in good faith at least three Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together with a reasonably detailed description of the material terms and conditions of such Indebtedness or drafts of the documentation relating thereto, stating that Parent has determined in good faith that such terms and conditions satisfy the requirement in this subclause (v) shall be conclusive evidence that such terms and conditions satisfy the requirement in this subclause (v); provided, further, that the aggregate principal amount of Indebtedness of Subsidiaries that are not (or do not become) Loan Parties incurred pursuant to this clause (A) shall not exceed at any time outstanding the greater of (X) $106,000,000 and (Y) 40% of EBITDA on a Pro Forma Basis for the Test Period most recently ended; and (B) Permitted Refinancing Indebtedness in respect of Indebtedness permitted by the foregoing clause (A);
(i) mortgage financings, purchase money and other Indebtedness incurred by Parent or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement and Capital Lease Obligations of Parent or any Subsidiary, in each case, so long as the aggregate principal amount of such Indebtedness at any time outstanding does not exceed the greater of (X) $97,500,000 and (Y) 37.5% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(j) other Indebtedness of Parent or any Subsidiary in an aggregate principal amount at any time outstanding that does not exceed the greater of (X) $130,000,000 and (Y) 50% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(k) Guarantees (i) by any Loan Party of any Indebtedness of any other Loan Party permitted to be incurred under this Agreement, (ii) by any Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Loan Party to the extent such Guarantees are permitted by Section 6.04(b)(iii), and (iii) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party; provided, that Guarantees by any Loan Party under this paragraph (k) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be subordinated to the Obligations to at least the same extent such other Indebtedness is so subordinated;
(l) Indebtedness arising from agreements of Parent or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price, earnouts or similar obligations, in each case, incurred or assumed in connection with any Permitted Business Acquisition or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, that in respect of the disposition of any business, assets or a Subsidiary, such Indebtedness shall not exceed the proceeds of such disposition;
(m) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(n) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(o) Indebtedness of Subsidiaries that are not Loan Parties in an aggregate principal amount not to exceed at any time outstanding the greater of (X) $50,000,000 and (Y) 20% of EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(p) unsecured Indebtedness constituting obligations of Parent or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days after the incurrence of the related obligations) in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(i) secured Indebtedness of Subsidiary Loan Parties under local lines of credit in an aggregate principal amount not to exceed at any time outstanding the greater of (X) $50,000,000 and (Y) at the time of any incurrence under this paragraph (q), 20% of EBITDA on a Pro Forma Basis for the Test Period most recently ended and (ii) Indebtedness of Parent and its Subsidiaries incurred in the ordinary course of business under overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services), in each case, extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by one or more of the Lenders or L/C Issuers or their Affiliates and (in each case) established for Parent’s and the Subsidiaries’ ordinary course of operations;
(r) (i) Specified Prepayment Debt the Net Proceeds of which are applied solely to the prepayment of Loans in accordance with Section 2.12(b) and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness issued by Parent or any Subsidiary to current or former officers, directors, managers, consultants and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Parent permitted by Section 6.06;
(t) Indebtedness consisting of obligations of Parent or any Subsidiary to any of their employees under deferred compensation or other similar arrangements incurred by such person in connection with Permitted Business Acquisitions or any other Investment permitted hereunder or in the ordinary course of business;
(u) Indebtedness of Parent or any Subsidiary to any joint venture (regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self insurance arrangements) of Parent and the Subsidiaries;
(i) Incremental Equivalent Debt in an aggregate principal amount at any time outstanding not to exceed, together with the aggregate amount of Incremental Commitments made after the Closing Date, the Incremental Amount and (ii) Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness incurred pursuant to subclause (i);
(w) Indebtedness of joint ventures and/or, without duplication, Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures, of Parent or any Subsidiary in an aggregate principal amount not in excess, at any one time outstanding, of the greater of (X) $130,000,000 and (Y) 50% of the EBITDA on a Pro Forma Basis for the Test Period most recently ended;
(x) Settlement Obligations;
(y) Customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
(z) all premium (if any, including tender premiums), expenses, defeasance costs, interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (y) above. For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories set forth above, Parent or Borrower may, in its sole discretion, at the time of incurrence, divide, classify or reclassify, or at any later time divide, classify or reclassify, such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant on the date such Indebtedness is incurred or such later time, as applicable; provided that all Indebtedness created pursuant to the Loan Documents will be deemed to have been incurred in reliance on the exception in clause (b) and will not be permitted to be reclassified pursuant to this paragraph. For purposes of determining compliance with this Section 6.01, 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 on or prior to the Closing Date, on the Closing Date and, in the case of such Indebtedness incurred after the Closing Date, on the date that such Indebtedness was committed or incurred, as applicable; 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 principal amount of such Indebtedness being refinanced plus (ii) the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and other costs and expenses incurred in connection with such refinancing. For purposes of the foregoing, with respect to revolving Indebtedness, Parent may elect to treat the full committed amount to be incurred at the date the commitment becomes effective (or on the Closing Date if such effective date was prior to the Closing Date). The accrual of interest and the accretion of accreted value and the payment of interest in the form of additional Indebtedness shall not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.01 or any other provision of a Loan Document. With respect to any Indebtedness that was permitted to be incurred under the Loan Documents on the date of such incurrence, any Increased Amount with respect thereto after the date of such incurrence shall also be permitted under the Loan Documents. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a balance sheet of the Parent dated such date prepared in accordance with GAAP. Notwithstanding the foregoing or anything herein to the contrary, no Loan Party organized in Panama shall incur any Indebtedness for borrowed money of such Loan Party unless such Indebtedness is permitted to be secured by Liens on property or assets constituting Collateral on a pari passu or junior basis with the Obligations hereunder pursuant to Section 6.02 and is so secured.
Appears in 1 contract
Sources: Credit Agreement (EVERTEC, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01) 6.01 and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of Person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessSecured Obligations;
(c) Indebtedness of the Borrower or any Subsidiary and the Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 6.13;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, in each case in the ordinary course of business or consistent with past practice or industry practicessuch obligations are reimbursed not later than thirty (30) days following such incurrence;
(e) Indebtedness of the Borrower to or any Subsidiary and of any Subsidiary owed to the Borrower or any other Subsidiary; providedSubsidiary to the extent permitted by Section 6.04, provided that Indebtedness owed by of any Loan Party owed to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) Loan Party (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred services in the ordinary course of business;, provided that (i) such Indebtedness (other than credit or purchase cards) is extinguished within three (3) Business Days of its incurrence and
Appears in 1 contract
Sources: Credit Agreement (Fathom Digital Manufacturing Corp)
Indebtedness. IncurCreate, createincur, assume or permit suffer to exist any Indebtedness, except:
Indebtedness except in respect of (a) the Obligations; (xb) Indebtedness (other than as described Capitalized Lease Obligations consisting of the Capital Lease of the wet sand plant located in Section 6.01(b) below) existing or committed on the Effective Date (provided▇▇▇▇▇▇ County, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, Wisconsin plus additional Capitalized Lease Obligations in an aggregate amount at any time outstanding not to exceed $6,875,000; (c) Permitted Purchase Money Indebtedness in excess of an aggregate amount at any time outstanding not to exceed $5,000,000 shall be set forth in Schedule 6.013,500,000; (d) and Indebtedness under any Hedge so long as such Indebtedness (yexcept to the extent constituting Hedge Liabilities) is unsecured; (e) Indebtedness owing to any other Credit Party or Restricted Subsidiary thereof so long as (i) any Permitted Refinancing such Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party owing to any subsidiary of the Borrower Person that is not a Loan Credit Party is subordinated pursuant to an agreement reasonably satisfactory to Agent and (ii) any such Indebtedness owing by a Restricted Subsidiary that is not a Credit Party, shall be subordinated in right of payment to the same extent required permitted pursuant to Section 6.01(e7.4(h)(iii);
; (bf) guarantees permitted under Section 7.3; (g) to the extent not otherwise described in this Section 7.6, Indebtedness set forth on Schedule 7.6 and any Permitted Refinancing in respect thereof; (h) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensationcompensation claims, health, disability or other employee benefits or property, property casualty or liability insurance, and self-insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personobligations, in each case in the ordinary course of business or consistent with past practice or industry practices;
business; (e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(gi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business business, (j) Indebtedness of the Parent Guarantor or other cash management servicesany Restricted Subsidiary consisting of the financing of insurance premiums, (k) Indebtedness arising from agreements of the Parent Guarantor or any Restricted Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case case, incurred or assumed in connection with a Disposition permitted under Section 7.1(b) or a Permitted Acquisition, (l) Indebtedness of the Parent Guarantor or any Restricted Subsidiary in connection with performance bonds, bid bonds, appeal bonds, bankers acceptances, insurance obligations, workers’ compensation claims, health or other types of social security benefits, surety bonds, completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Parent Guarantor or a Restricted Subsidiary in the ordinary course of business;business or pursuant to self-insurance obligations and in each case not in connection with the borrowing of money or the obtaining of advances, (m) Indebtedness in the form of subordinated notes in an aggregate amount at any time outstanding not to exceed $5,000,000 so long as immediately before and after giving effect to the incurrence of any such Indebtedness, and the application of the use of proceeds therefrom: (i) no Event of Default shall have occurred or be continuing or shall be caused thereby; (ii) after giving effect to the incurrence of such Indebtedness and the use of proceeds therefrom, Parent Guarantor and its Restricted Subsidiaries shall be in compliance on a Pro Forma Basis with the covenants then in effect set forth in Section 6.5 as of the most recently ended Test Period; and (iii) (A) interest on such Indebtedness may not be paid in cash prior to the Maturity Date, (B) such Indebtedness shall not mature and shall not provide for any mandatory prepayments, offers to repurchase or redemptions (other than customary asset sale and change of control offers) until at least six months after the Maturity Date, and such Indebtedness shall be subordinated in right of payment to the Obligations pursuant to a subordination agreement satisfactory to the Agent, (C) such Indebtedness shall be unsecured and shall not be guaranteed by any person other than a Credit Party, (D) the aggregate amount of Indebtedness permitted to be incurred under this Section 7.6(m) by Restricted Subsidiaries that are not Credit Parties shall not exceed $2,125,000 at any time outstanding, (E) the covenants, mandatory prepayments, events of default and guarantees of such Indebtedness, taken as a whole, shall not be materially more restrictive to the Credit Parties than the terms of this Agreement, as determined by the Borrowing Agent in good faith, unless (1) such provisions are added to this Agreement for the benefit of the Lenders hereunder or (2) any such provisions apply after the Maturity Date, and (F) any Indebtedness incurred under this Section 7.6(m) cannot be provided by any Credit Party or any of their respective Affiliates and shall have furnished to the Agent a certificate from an Authorized Officer certifying as to compliance with the requirements of the preceding clauses (i), (ii) and (iii) and containing the calculations required by the preceding clause (ii), (n) the Specified Note, including interest payments thereon by the increase in the principal amount thereof in accordance with the terms of the Specified Note, the Specified Obligations and the Specified Other Obligations, and (o) Permitted Second Lien Notes (including any interest payable-in-kind with respect thereto) and any Permitted Refinancing thereof.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP)
Indebtedness. IncurCreate, createissue, assume incur, assume, become liable in respect of or permit suffer to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that of any such Indebtedness that is owed Loan Party pursuant to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Document;
(b) unsecured Indebtedness created hereunder (including pursuant i) of the Borrower to Section 2.21any Subsidiary Guarantor (provided that such Indebtedness is subordinated to the payment of the Obligations in accordance with the Subordination Provisions and the notes issued in respect thereof have been pledged to the Collateral Agent, Section 2.22 for the benefit of the Secured Parties), (ii) of any Subsidiary Guarantor to the Borrower (provided that such Indebtedness is subordinated to the payment of the Obligations in accordance with the Subordination Provisions and Section 2.23the notes issued in respect thereof have been pledged to the Collateral Agent, for the benefit of the Secured Parties), (iii) of any Subsidiary to the Borrower or any Subsidiary Guarantor (provided that such Indebtedness is subordinated to the payment of the Obligations in accordance with the Subordination Provisions and under the notes issued in respect thereof have been pledged to the Collateral Agent, for the benefit of the Secured Parties), and (iv) of any Subsidiary that is not a Subsidiary Guarantor to any other Loan Documents and any Refinancing Notes incurred Subsidiary (provided that such Indebtedness is subordinated to Refinance such Indebtednessthe payment of the Obligations in accordance with the Subordination Provisions);
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit bankers’ acceptances and bid, performance and surety or bank guarantees appeal bonds, workers’ compensation claims and payment obligations in connection with self-insurance or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personobligations, in each case in the ordinary course of business business, including guarantees or consistent with past practice or industry practices;
(e) Indebtedness obligations of the Borrower with respect to any Subsidiary and letters of any Subsidiary to the Borrower or any other Subsidiary; providedcredit, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred issued in the ordinary course of business business, supporting such obligations;
(d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or extensions thereof (without (i) shortening the maturity or weighted average life thereof or (ii) increasing the principal amount thereof, other than to pay any customary fees and premiums required to be paid under the terms of the instrument governing such Indebtedness and to pay reasonable expenses incurred in connection with the cash managementsuch refinancing, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentrefunding, renewal or extension);
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(ge) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds funds, so long as such Indebtedness is extinguished within five Business Days of incurrence;
(f) Indebtedness (including, without limitation, Capital Lease Obligations) to finance the acquisition of fixed or capital assets in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding;
(g) Hedge Agreements permitted under Section 7.12;
(h) Indebtedness represented by guarantees by the Borrower or any Subsidiary Guarantor of Indebtedness of the Borrower or any Subsidiary otherwise permitted to be incurred under this Agreement, provided that such guarantees are subordinated to the Obligations (and any guarantee thereof) on the same terms as the underlying Indebtedness in respect thereof;
(i) Indebtedness consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets or the Capital Stock of Subsidiaries permitted by this Agreement;
(j) Indebtedness incurred under commercial letters of credit issued for the account of a Group Member in the ordinary course of business (and not for the purpose of, directly or indirectly, incurring Indebtedness or providing credit support or a similar arrangement in respect of Indebtedness), provided that any drawing under any such letter of credit is reimbursed in full within seven days;
(k) Indebtedness of the Borrower or any Subsidiary Guarantor comprising “earn-out” obligations payable in connection with any Permitted Acquisition or Permitted Joint Venture made by the Borrower or such Subsidiary Guarantor in an aggregate amount not to exceed 5.0% of the aggregate consideration paid by the Borrower or such Subsidiary Guarantor in connection with such Permitted Acquisition or Permitted Joint Venture (and any renewals or extensions thereof);
(l) Acquired Indebtedness in an aggregate amount not to exceed $5,000,000;
(m) Indebtedness of the Borrower or any Subsidiary Guarantor, secured on a second priority basis by the Collateral, in an aggregate amount not to exceed $50,000,000 at any one time outstanding; provided that (i) any entity providing any guarantee or other cash management services, credit support in each case respect of any obligations incurred under this clause (m) shall also be a Subsidiary Guarantor hereunder and (ii) the lenders in respect of such Indebtedness shall have entered into an intercreditor agreement on terms and conditions reasonably satisfactory to the ordinary course of businessCollateral Agent and the Required Lenders;
Appears in 1 contract
Sources: Credit Agreement (CKX, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed or anticipated in the future to be outstanding on the Effective Signing Date (provided, that any such Indebtedness that is owed incurred pursuant to any person other than the Borrower and/or one or more of its Subsidiaries, this clause (a)(i) in an aggregate principal amount in excess of $5,000,000 35,000,000 or anticipated on the Signing Date to be outstanding in the future, shall be set forth in on Schedule 6.01) and (yii) Indebtedness existing or committed, or anticipated in the future to be outstanding, on the Spinoff Date (provided that any Indebtedness incurred pursuant to this clause (a)(ii) shall be permitted only if the Administrative Agent consents thereto (in its reasonable discretion) and Schedule 6.01 is updated accordingly to include such Indebtedness) and any Permitted Refinancing Indebtedness incurred to Refinance such IndebtednessIndebtedness incurred pursuant to this clause (a); provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Loan Obligations under this Agreement on customary terms;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower Parent or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower Parent or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower Parent to any Subsidiary and of any Subsidiary to the Borrower Parent or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Loan Party owing to a Loan Party incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentcustomary terms;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Spinoff Date or a person merged or consolidated with Parent, any Borrower or any Subsidiary after the Spinoff Date and Indebtedness otherwise assumed by any Loan Party in connection with a Permitted Acquisition in an amount not to exceed the greater of $75,000,000 and 0.75% of Consolidated Total Assets when incurred, created or assumed; provided, that, (x) Indebtedness incurred pursuant to preceding sub clause (h)(i) shall be in existence prior to such Permitted Acquisition and shall not have been created in contemplation thereof or in connection therewith; (ii) Indebtedness incurred to finance any Permitted Acquisition after the Spinoff Date; provided that (i) in an amount not to exceed the greater of $75,000,000 and 0.75% of Consolidated Total Assets when incurred, created or assumed; provided that before and after giving effect to such Permitted Acquisition on a Pro Forma Basis, no Default or Event of Default exists and (ii) after giving effect to such acquisition on a Pro Forma Basis, either (x) the Total Net Leverage Ratio shall not be greater than 2.25 to 1.00 or (y) the Total Net Leverage Ratio shall not be greater than the Total Net Leverage Ratio in effect immediately prior to such Permitted Acquisition and (iii) any Permitted Refinancing Indebtedness incurred to Refinance any Indebtedness incurred pursuant to this clause (h);
Appears in 1 contract
Sources: Credit Agreement (Adient PLC)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be 20.0 million individually is set forth in on Schedule 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (yor in the case of a letter of credit, any replacement, renewal or extension of such letter of credit) (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary) and (ii) intercompany Indebtedness existing or committed on the Closing Date and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; providedprovided that, that other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the subsidiaries, (x) all such Indebtedness, if owed to a Loan Party, shall be evidenced by the Global Intercompany Note or other promissory note and shall be subject to a first priority Lien pursuant to the applicable Security Document and (y) any Indebtedness outstanding pursuant to this clause (a) which is owed by of a Loan Party to any subsidiary of the Borrower Subsidiary that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant Loan Obligations under this Agreement on subordination terms as described in the Global Intercompany Note or on other subordination terms reasonably satisfactory to Section 6.01(e)the Administrative Agent and the Borrower;
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Swap Agreements not entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (that, other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiariessubsidiaries, (i) all such Indebtedness, if owed to a Loan Party, shall be evidenced by the Global Intercompany Note or other promissory note and shall be subject to a first priority Lien pursuant to the applicable Security Document and (ii) (x) Indebtedness of any Subsidiary that is not a Loan Party owing to any Loan Parties shall be subject to Section 6.04 and (y) Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party (the “Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms as described in the Global Intercompany Note or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (in each case, including a Permitted Business Acquisition), where such acquisition, merger, consolidation or amalgamation, as applicable, is not prohibited by this Agreement; provided, (A) to the extent required by the lenders providing such Indebtedness, no Event of Default shall have occurred and be continuing or would result therefrom, (B) in the case of any such Indebtedness secured by a Lien on the Collateral that is pari passu in right of security with the Liens securing the Obligations, the Senior Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than, at the Borrower’s election, (I) 4.50 to 1.00 or (II) the Senior Secured Leverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (C) in the case of any such Indebtedness secured by Liens on Collateral that are junior in right of security to the Liens securing the Obligations, the Total Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than, at the Borrower’s election, (I) 4.75 to 1.00 or (II) the Total Secured Leverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (D) in the case of any other such Indebtedness, the Fixed Charge Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation or amalgamation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is no less than, at the Borrower’s election, (I) 2.00 to 1.00 or (II) the Fixed Charge Coverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation and (E) the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties under this clause (h), together with the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to Section 6.01(r), shall not exceed the greater of $400.0 million and 0.175 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence (but not assumption) of any Indebtedness for borrowed money pursuant to this clause (h)(i) incurred in contemplation of such acquisition, merger, consolidation or amalgamation shall be subject to the last paragraph of this Section 6.01; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(i) (i) Capital Lease Obligations, mortgage financings, slot financing arrangements and other purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interests in any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate outstanding principal amount not to exceed the greater of $900.0 million and 0.40 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that at the time of, and immediately after giving effect to, the incurrence thereof, would not exceed the greater of $750.0 million and 0.325 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower from Excluded Debt Contributions;
(m) Guarantees (i) by the Borrower or any Subsidiary Loan Party of the Indebtedness or other obligations of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by any Loan Party of Indebtedness or other obligations otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(w)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness or other obligations of another Subsidiary that is not a Subsidiary Loan Party and (iv) by the Borrower or any Subsidiary Loan Party of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s); provided, that (x) Guarantees by any Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be subordinated to the Loan Obligations to at least the same extent such underlying Indebtedness is so subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn outs), in each case, incurred or assumed in connection with the Transactions and any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(p) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) other Indebtedness so long as (A) to the extent required by the lenders providing such Indebtedness, no Event of Default shall have occurred and be continuing or would result therefrom (provided that if such Indebtedness is established for a purpose other than financing any Permitted Business Acquisition or any other acquisition or Investment that is permitted by this Agreement, no Event of Default under Section 7.01(b), (c), (h) (with respect to the Borrower) or (i) (with respect to the Borrower) shall have occurred and be continuing or would result therefrom) and (B) after giving effect to the issuance, incurrence or assumption of such Indebtedness (x) in the case of Indebtedness that is secured by a Lien on the Collateral that is pari passu in right of security with the Initial Revolving Loans, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be greater than, at the Borrower’s election, (1) 4.50 to 1.00 or (2) if such Indebtedness is incurred to finance a Permitted Business Acquisition or other Investment permitted hereunder, the Senior Secured Leverage Ratio immediately prior to giving effect to such Permitted Business Acquisition or permitted Investment, (y) in the case of Indebtedness that is secured by a Lien on the Collateral that is junior in right of security to the Initial Revolving Loans, the Total Secured Leverage Ratio on a Pro Forma Basis shall not be greater than, at the Borrower’s election, (1) 4.75 to 1.00 or (2) if such Indebtedness is incurred to finance a Permitted Business Acquisition or other Investment permitted hereunder, the Total Secured Leverage Ratio immediately prior to giving effect to such Permitted Business Acquisition or permitted Investment and (z) in the case of unsecured Indebtedness, the Fixed Charge Coverage Ratio on a Pro Forma Basis is at least, at the Borrower’s election, (1) 2.00 to 1.00 or (2) if such Indebtedness is incurred to finance a Permitted Business Acquisition or other Investment permitted hereunder, the Fixed Charge Coverage Ratio immediately prior to giving effect to such Permitted Business Acquisition or permitted Investment; provided, however, that (I) the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties under this clause (r), together with the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to Section 6.01(h), shall not exceed the greater of $400.0 million and 0.175 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, (II) the Net Proceeds of any Indebtedness incurred pursuant to this Section 6.01(r) at such time shall not be netted for purposes of the calculation of the Senior Secured Leverage Ratio and the Total Secured Leverage Ratio in respect of such incurrence, as applicable, and (III) any Indebtedness incurred pursuant to Section 6.01(r)(i) shall be subject to the last paragraph of Section 6.01; and (ii) Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate outstanding principal amount not to exceed the greater of $350.0 million and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and any Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness in connection with Permitted Receivables Financings in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, would not exceed $115.0 million;
(w) Indebtedness of the Borrower and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the Administrative Agent or by one or more of the Lenders or their Affiliates and (in each case) established for the Borrower’s and its Subsidiaries’ ordinary course of operations (such Indebtedness, the “Overdraft Line”), which Indebtedness may be secured under the Security Documents or the security documents governing any Indebtedness permitted under Section 6.01(jj) (or any Refinancing thereof);
(x) Indebtedness of, or incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures not in excess, at any one time outstanding, of the greater of $340.0 million and 0.15 times the EBITDA calculated on a Pro Forma Basis for the
Appears in 1 contract
Indebtedness. IncurNeither the Borrower nor any of the Subsidiaries shall create, createincur, assume or permit suffer to exist any Indebtedness, except:
(a) Indebtedness existing on the Closing Date and set forth on Schedule 7.03 (xexcluding Indebtedness under clauses (b) and (l) of this Section 7.03) and any Permitted Refinancing of such Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such intercompany Indebtedness that is refinanced with Indebtedness owed to any person other than a Person not affiliated with the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eSubsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary and the Subsidiaries pursuant to Hedging Swap Agreements entered into for non-speculative purposespermitted by Section 7.10;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such personPerson, in each case provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed in the ordinary course of business or consistent with past practice or industry practicesbusiness;
(e) Indebtedness of the Borrower to any Subsidiary and of or any Subsidiary to the Borrower or any other Subsidiary; providedextent permitted by Section 7.02, provided that Indebtedness owed by of any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) Loan Party (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries“Subordinated Intercompany Debt”) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative AgentRequired Lenders;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business, provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within three (3) Business Days of its incurrence and (y) such Indebtedness in respect of credit or purchase cards is extinguished within sixty (60) days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a Person merged into or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing of such Indebtedness, provided that the aggregate principal amount of such Indebtedness at the time of, and after giving effect to, such acquisition, merger or consolidation, such assumption or such incurrence, as applicable (together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) of this Section 7.03 and the Remaining Present Value of outstanding leases permitted under Section 7.04), would not exceed $30,000,000;
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or within 180 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition or improvement, and any Permitted Refinancing in respect thereof, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 7.03, this paragraph (i) and the Remaining Present Value of leases permitted under Section 7.04) would not exceed $30,000,000;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 7.04;
(k) other Indebtedness, not otherwise permitted by this Section 7.03, in an aggregate principal amount at any time outstanding pursuant to this paragraph (k) not in excess of $60,000,000;
(i) ABL Loans, (ii) any ABL Incremental Loans in an aggregate principal amount not to exceed $100,000,000 and (iii) any Permitted Refinancing of amounts incurred under the foregoing clauses (i) and (ii);
(m) Guarantees (i) by the Loan Parties of the Indebtedness of the Borrower described in paragraph (l) and (v), (ii) by any Loan Party of any Indebtedness of the Borrower or any Loan Party expressly permitted to be incurred under this Agreement, (iii) by the Borrower or any Subsidiary of Indebtedness otherwise expressly permitted hereunder of the Borrower or any Subsidiary that is not a Loan Party to the extent permitted by Section 7.02, (iv) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party; provided that all Foreign Subsidiaries may guarantee obligations of other Foreign Subsidiaries under ordinary course Cash Management Obligations, and (v) by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 7.03(a), (k) or (s); provided that Guarantees by any Loan Party under this Section 7.03(m) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to be used, for Subordinated Intercompany Debt;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(o) [Reserved];
(p) letters of credit or bank guarantees having an aggregate face amount not in excess of $60,000,000;
(q) Indebtedness in respect of Cash Management Obligations or Treasury Services Agreements, in each case incurred in the ordinary course of business;
(r) Indebtedness consisting of Permitted Ratio Debt to the extent permitted at the time of incurrence thereof pursuant to the definition thereof, and any Permitted Refinancing thereof;
(s) Indebtedness of Foreign Subsidiaries (including letters of credit or bank guarantees for working capital purposes incurred in the ordinary course of business on ordinary business terms in an aggregate amount not to exceed $10,000,000 outstanding at any time;
(t) Indebtedness of the Borrower and its Subsidiaries in respect of factoring of receivables from a foreign customer held by the Borrower and its Subsidiaries in an aggregate principal amount not to exceed $5,000,000 at any time; and
(u) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (t) above.
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist exist, directly or indirectly, any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to under this clause (a) which is owed by a Agreement and the other Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(e)Documents;
(b) Indebtedness created hereunder (including pursuant to Section 2.21outstanding on the Closing Date and listed on Schedule 6.01(b), Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessPermitted Refinancings thereof;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes[Reserved];
(d) Indebtedness owed to permitted by Section 6.04(e), (including obligations in respect of letters of credit h) or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices(i);
(e) Indebtedness in respect of the Borrower to any Subsidiary Purchase Money Obligations and Capital Lease Obligations and Attributable Indebtedness in respect of any Subsidiary to the Borrower or any other Subsidiary; providedSale and Leaseback Transactions, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations an aggregate amount under this Agreement on terms reasonably satisfactory clause (e) not to the Administrative Agentexceed $25,000,000 at any time outstanding;
(f) Indebtedness in respect of bid, performance or surety bonds, bid bondsworkers’ compensation claims, appeal bonds, surety bonds self-insurance obligations and completion guarantees and similar obligations, in each case provided bankers acceptances issued for the account of Holdings or any Restricted Subsidiary in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred guarantees or obligations of Holdings or any Restricted Subsidiary with respect to secure healthletters of credit supporting such bid, safety performance or surety bonds, workers’ compensation claims, self-insurance obligations and environmental obligations bankers acceptances (in the ordinary course of business or consistent with past practice or industry practiceseach case other than for an obligation for money borrowed);
(g) Contingent Obligations of (i) any Loan Party in respect of Indebtedness otherwise permitted under this Section 6.01 and (ii) any Restricted Subsidiary in respect of Indebtedness in an aggregate amount not to exceed $50,000,000 at any time outstanding;
(h) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business or other cash management servicesbusiness; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;
(i) Indebtedness arising in each case incurred connection with endorsement of instruments for deposit in the ordinary course of business;
(j) Indebtedness of Holdings and its Restricted Subsidiaries in an aggregate principal amount not to exceed $50,000,000 at any time outstanding; provided that, if at the time of incurrence of any Indebtedness under this clause (j), the Total Leverage Ratio for the Test Period then last ended (determined on a Pro Forma Basis after giving effect to such incurrence of Indebtedness) is less than 3.25 to 1.00, then the basket for the incurrence of Indebtedness under this clause (j) shall be increased to $100,000,000 solely in respect of the incurrence of such Indebtedness;
(k) Holdings and its Restricted Subsidiaries may become and remain liable with respect to customary indemnification and purchase price adjustment obligations incurred in connection with Asset Sales or other sales of assets;
(l) Indebtedness assumed in connection with any Permitted Acquisition; provided that (i) such Indebtedness (A) was not incurred in contemplation of such Permitted Acquisition, (B) is secured only by the assets acquired in the applicable Permitted Acquisition (including any acquired Equity Interests) and (C) the only obligors with respect to any Indebtedness incurred pursuant to this clause (l) shall be those persons who were obligors of such Indebtedness prior to such Permitted Acquisition, (ii) both immediately prior to and after giving effect thereto no Default shall exist or result therefrom and (iii) Holdings shall be in compliance on a Pro Forma Basis after giving effect to the assumption of such Indebtedness with each of the covenants set forth in Section 6.09 for the Test Period then last ended; provided that, if the Indebtedness so assumed is not subordinated in payment to the Obligations on terms reasonably satisfactory to the Administrative Agent, then, with respect to determining compliance with the covenant set forth in Section 6.09(a) for purposes of this clause (l), the then-current covenant level reflected in Section 6.09(a) shall be reduced by 0.25 to 1.00;
(m) Indebtedness under Permitted Senior Notes and Permitted Subordinated Notes, the Net Cash Proceeds of which are applied to prepay Loans pursuant to Section 2.12(d) and (ii) Permitted Refinancings thereof; provided that (x) both immediately prior to and after giving effect thereto no Default shall exist or result therefrom and (y) Holdings shall be in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (and the use of the proceeds thereof) with each of the covenants set forth in Section 6.09 for the Test Period then last ended;
(n) Indebtedness under Permitted Subordinated Notes and Permitted Refinancings thereof; provided that (i) both immediately prior to and after giving effect thereto no Default shall exist or result therefrom and (ii) in the case of the initial incurrence thereof (but not any Permitted Refinancings), Holdings shall be in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (and the use of the proceeds thereof) with each of the covenants set forth in Section 6.09 for the Test Period then last ended;
(o) Indebtedness under Permitted Senior Notes and Permitted Refinancings thereof; provided that (i) both immediately prior to and after giving effect thereto no Default shall exist or result therefrom and (ii) in the case of the initial incurrence thereof (but not any Permitted Refinancings), Holdings shall be in compliance on a Pro Forma Basis after giving effect to the incurrence of such Indebtedness (and the use of the proceeds thereof) with each of the covenants set forth in Section 6.09 for the Test Period then last ended (provided that, with respect to determining compliance with the covenant set forth in Section 6.09(a) for purposes of this clause (o), the then-current covenant level reflected in Section 6.09(a) shall be reduced by 0.25 to 1.00); and
(p) Indebtedness incurred by Restricted Subsidiaries that are not Guarantors in an aggregate principal amount not to exceed $50,000,000 at any time outstanding.
Appears in 1 contract
Indebtedness. IncurThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to create, incur, assume or permit otherwise become or remain liable with respect to exist any Indebtedness, except:
(a) the Secured Obligations;
(xb) Indebtedness of (other than as described in Section 6.01(bi) belowthe Borrower to Holdings and/or any Restricted Subsidiary and/or (ii) existing or committed on the Effective Date (providedany Restricted Subsidiary to Holdings, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtednessother Restricted Subsidiary; provided, that (A) in the case of any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to of any subsidiary of the Borrower Restricted Subsidiary that is not a Loan Party shall be subordinated in right of payment owing to the same extent required pursuant Borrower or any Restricted Subsidiary that is a Loan Party, the related Investment is permitted under Section 6.06, and (B) any Indebtedness of any Loan Party owing to Section 6.01(e);
any Restricted Subsidiary that is not a Loan Party incurred in reliance on this clause (b) Indebtedness created hereunder must be unsecured and expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant it being understood that the subordination terms set forth in the Intercompany Note are acceptable to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessAdministrative Agent);
(c) [reserved];
(i) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with the Transactions, any Disposition permitted hereunder, any acquisition or other Investment permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock or any other Investment, and (ii) Indebtedness arising from guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesagreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) as a result of or pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business or pursuant to self-insurance obligations and not in connection with debt for borrowed money and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any Subsidiary and of any Subsidiary to the foregoing items;
(f) Indebtedness of the Borrower or and/or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Restricted Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(ein respect of Banking Services and/or otherwise in connection with Cash management and Deposit Accounts;
(g) (other than intercompany current liabilities i) guaranties by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in connection with the cash management, tax and accounting operations respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
services and (fiii) Indebtedness in respect of performance bondsletters of credit, bid bondsbankers’ acceptances, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft guaranties or similar instrument drawn against insufficient funds in the ordinary course of business instruments supporting trade payables, warehouse receipts or other cash management services, in each case incurred similar facilities entered into in the ordinary course of business;
(h) Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided, that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $42,500,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $42,500,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary and/or Indebtedness assumed in connection with any acquisition or similar Investment; provided, that:
(i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in contemplation of the applicable acquisition or similar Investment, and
(ii) after giving effect to such Indebtedness on a Pro Forma Basis, the Borrower is in compliance with Section 6.10(a);
(o) Indebtedness issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Borrower or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (u), (w), (y), (z), (ii) and/or (jj) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of, and commitments in respect of, the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided, that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02);
(ii) in the case of Refinancing Indebtedness with respect to clauses (a), (w) and/or (z) (other than Customary Bridge Loans), such Indebtedness (other than revolving indebtedness) has (A) a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the Latest Term Loan Maturity Date and (B) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the outstanding Term Loans at such time;
(iii) the terms of any Replacement Debt with an original principal amount in excess of the Threshold Amount (excluding, to the extent applicable, pricing (including any “MFN” provision), fees, premiums, rate floors, optional prepayment, funding discounts, maturity, amortization schedule, redemption terms or subordination terms and security), are not, taken as a whole (as determined by the Borrower in good faith), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenant or any other provision applicable only to periods after the applicable maturity date of the debt then being refinanced as of such date, (B) any covenant or provision which constitutes a then-current market term for the applicable type of Indebtedness (as determined by the Borrower in good faith), or (C) any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent, pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)), it being understood and agreed that if any Refinancing Indebtedness that constitutes a revolving facility includes a financial covenant, the requirement set forth in this clause (iii) shall be satisfied if such financial covenant is added to this Agreement for the benefit of the then-existing Revolving Facility but not any then-existing Term Facility);
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n)(ii)(C), (u), (w) (solely as it relates to the Fixed Incremental Amount), (y), (z) (solely as it relates to the Fixed Incremental Amount), (ii) and/or (jj) of this Section 6.01, the incurrence thereof shall be without duplication of any amount outstanding in reliance on the relevant clause such that the amount available under the relevant clause shall be reduced by the amount of the applicable Refinancing Indebtedness;
(v) except in the case of Refinancing Indebtedness constituting Replacement Debt, (A) (1) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and (2) either (x) if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as determined by the Borrower in good faith), taken as a whole, to the Lenders than those (I) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or (II) set forth in any relevant Intercreditor Agreement or (y) the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)); it being understood that the proceeds of any such Refinancing Indebtedness may be funded into Escrow pursuant to customary (in the good faith determination of the Borrower) escrow arrangements, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that (1) any entity that was a guarantor in respect of the relevant refinanced Indebtedness may be the primary obligor in respect of the refinancing Indebtedness, and any entity that was the primary obligor in respect of the relevant refinanced Indebtedness may be a guarantor in respect of the refinancing Indebtedness and (2) the obligation of any Person with respect to any Escrow arrangement into which the proceeds of such Refinancing Indebtedness are deposited shall not constitute a Guarantee) and (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)); and
(vi) in the case of Refinancing Indebtedness constituting Replacement Debt, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Refinancing Indebtedness that is pari passu or junior with respect to the Collateral shall be subject to an Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any asset that does not constitute Collateral; it being understood that the proceeds of any such Refinancing Indebtedness may be funded into Escrow pursuant to customary (in the good faith determination of the Borrower) escrow arrangements, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Restricted Subsidiary of the Borrower other than one or more Loan Parties (it being understood that the obligation of any Person with respect to any Escrow arrangement into which the proceeds of such Refinancing Indebtedness are deposited shall not constitute a Guarantee) and (D) such Refinancing Indebtedness is incurred under (and pursuant to) documentation other than this Agreement;
(q) [reserved];
(r) [reserved];
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
(t) Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater of $42,500,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(v) [reserved];
(w) Indebtedness of the Borrower and/or any Restricted Subsidiary (any Indebtedness incurred pursuant to this Section 6.01(w), “Ratio Debt”) so long as:
(i) after giving effect thereto, including the application of the proceeds thereof (in each case, without “netting” the cash proceeds of the applicable Indebtedness being incurred), the outstanding principal thereof does not exceed an amount equal to the sum of (x) the Fixed Incremental Amount, (y) (A) the Incremental Prepayment Amount minus (B) the amount of any Incremental Facility and/or Incremental Equivalent Debt incurred or implemented in reliance on clause (d) of the definition of “Incremental Cap” and (z) an additional unlimited amount, so long as, in the case of this clause (z), on a Pro Forma Basis:
(A) if such Ratio Debt constitutes First Lien Debt, the First Lien Net Leverage Ratio does not exceed 3.60:1.00;
(B) if such Ratio Debt constitutes Junior Lien Debt, the Secured Net Leverage Ratio does not exceed 4.10:1.00; or
(C) if such Ratio Debt is not secured by the Collateral or is unsecured, the Total Net Leverage Ratio does not exceed 4.35:1.00;
(ii) the aggregate outstanding principal amount of Ratio Debt incurred in reliance on this Section 6.01(w) by Restricted Subsidiaries that are not Loan Parties shall not, at any time, exceed an amount equal to the greater of $42,500,000 and 50% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; and
(iii) if such Ratio Debt is issued or incurred by any Loan Party and consists of third party Indebtedness for borrowed money (other than Indebtedness among the Borrower and it
Appears in 1 contract
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be and set forth in on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary Restricted Subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eBorrower);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessDocuments;
(c) Indebtedness of the Borrower or any Subsidiary and the Restricted Subsidiaries pursuant to Hedging Agreements entered into for non-speculative purposesPermitted Swap Agreements;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any SubsidiaryRestricted Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such personPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, in each case in the ordinary course of business or consistent with past practice or industry practicessuch obligations are reimbursed not later than 30 days following such incurrence;
(e) unsecured Indebtedness of the Borrower or any Subsidiary Loan Party owing to any Subsidiary and of any Subsidiary to other Loan Party (the Borrower or any other Subsidiary; “Subordinated Intercompany Debt”), provided, that such Indebtedness owed by any Loan Party is not held, assigned, transferred, negotiated or pledged to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (Person other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash managementa Loan Party, tax and accounting operations of the Borrower and the Subsidiaries) provided, further, that any such Indebtedness for borrowed money shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicesbusiness, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or and Indebtedness arising out of advances on exports, advances on imports, advances on trade receivables, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management servicesservices in the ordinary course of business; provided, that (i) such Indebtedness (other than credit or purchase cards) is extinguished within five Business Days of its incurrence and (ii) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Restricted Subsidiary acquired after the Closing Date or a Person merged into, amalgamated or consolidated with the Borrower or any Restricted Subsidiary after the Closing Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case, exists at the time of such acquisition, merger, amalgamation or consolidation and is not created in contemplation of such event and where such acquisition, merger, amalgamation or consolidation is permitted by this Agreement and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that the aggregate principal amount of such Indebtedness outstanding at any time (together with Indebtedness outstanding pursuant to this paragraph (h) and paragraph (i) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), shall not exceed the greater of (A) U.S.$50.0 million and (B) 5.5% of Consolidated Total Assets;
(i) Capital Lease Obligations (including any Sale and Lease-Back Transaction that is permitted under Section 6.03) and Purchase Money Obligations to the extent that the aggregate total of all such Capital Lease Obligations and Purchase Money Obligations outstanding at any one time (together with Indebtedness outstanding pursuant to this paragraph (i) and paragraph (h) of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), shall not exceed the greater of (A) U.S.$50.0 million and (B) 5.5% of Consolidated Total Assets;
(j) other secured junior Indebtedness of the Borrower or any Subsidiary Loan Party; provided, that (i) the Liens securing the Obligations shall be senior to the Liens securing such other secured junior Indebtedness, (ii) on or prior to the incurrence or creation of such other Indebtedness, the agent and lenders under such facility shall have entered into such intercreditor agreements as may be reasonably required or agreed by the Administrative Agent, (iii) to the extent required by Section 2.04(b) and Section 2.04(c), the Net Proceeds of such secured junior Indebtedness is applied to prepay the Loans, (iv) no such secured junior Indebtedness shall provide for a final maturity date, scheduled amortization or any other scheduled repayment, mandatory redemption or sinking fund obligation prior to the Maturity Date, (v) the incurrence of such senior secured junior Indebtedness is permitted by the Revolving Credit Facility, and (vi) no Default or Event of Default then exists or would result therefrom;
(k) Guarantees (i) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party expressly permitted to be incurred under this Agreement, (ii) by the Borrower or any Restricted Subsidiary of Indebtedness of any Restricted Subsidiary that is not a Subsidiary Loan Party to the extent permitted by Section 6.04, and (iii) by any Restricted Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Restricted Subsidiary that is not a Subsidiary Loan Party; provided, that Guarantees under clause (ii) of this Section 6.01(k) and any other Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(k) of any other Indebtedness of a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or to be used, for Subordinated Intercompany Debt;
(l) Indebtedness arising from agreements of the Borrower or any Restricted Subsidiary of the Borrower providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition;
(m) Indebtedness supported by any Letter of Credit (as defined in the Revolving Credit Agreement) that is (i) outstanding on the Closing Date or (ii) issued after the Closing Date in connection with agreements existing on the Closing Date that contemplate or require the issuance of letters of credit; provided, that (x) any such Letter of Credit shall be issued in connection with the Double E Joint Venture or otherwise issued in respect of Indebtedness incurred in the ordinary course of businessbusiness or with respect to trade payables and (y) the aggregate amount available to be drawn under all such Letters of Credit shall not exceed $100.0 million.
(n) Indebtedness consisting of Permitted Junior Debt;
(o) Guarantees of Indebtedness of Unrestricted Subsidiaries and other Persons that are not Loan Parties or Restricted Subsidiaries to the extent that Investments are permitted under Section 6.04(g);
(p) other unsecured Indebtedness not otherwise permitted by this Section 6.01 in an aggregate principal amount at any time outstanding not to exceed U.S.$25.0 million;
(q) Indebtedness of Summit Permian incurred pursuant to the IRB Lease Agreement;
(r) Indebtedness incurred under the Revolving Credit Agreement and Indebtedness pursuant to any Secured Swap Agreements (as defined in the Revolving Credit Agreement) constituting Permitted Swap Agreements and entered into to effectively cap, collar or exchange interest rates with respect to any interest-bearing liability or investment of the Borrower or any Subsidiary Loan Party; provided that such Indebtedness (i) is subject at all times to the Intercreditor Agreement and (ii) the aggregate principal amount at any time outstanding under the Revolving Credit Agreement shall not exceed U.S.$1.0 billion; and provided further, that before and after giving effect to such incurrence, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenants, as computed as of the date of the incurrence of such Indebtedness;
(s) Indebtedness incurred under the NewCo Credit Agreement; provided that such Indebtedness is subject at all times to the Intercreditor Agreement; and
(t) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (s) above.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Summit Midstream Partners, LP)
Indebtedness. IncurThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit otherwise become or remain liable with respect to exist any Indebtedness, except:
(a) the Secured Obligations (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that including any such Indebtedness that is owed to Additional Term Loans and any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eAdditional Revolving Loans);
(b) Indebtedness created hereunder (including pursuant of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Restricted Subsidiary that is a Loan Party, such Indebtedness shall be permitted as an Investment under Section 2.216.06; provided, Section 2.22 further, that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be unsecured and Section 2.23) and under expressly subordinated to the other Obligations of such Loan Documents and any Refinancing Notes incurred Party on terms that are reasonably acceptable to Refinance such Indebtednessthe Administrative Agent;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes[reserved];
(d) Indebtedness owed to arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including obligations contingent earn-out obligations) incurred in respect connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties, letters of credit or credit, bank guarantees guaranties, surety bonds, performance bonds or similar instruments for securing the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to performance of the Borrower or any Subsidiary, such Restricted Subsidiary pursuant to reimbursement or indemnification obligations to any such person, in each case in the ordinary course of business or consistent with past practice or industry practicesagreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any Subsidiary and of any Subsidiary to the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of Banking Services and incentive, supplier finance or similar programs;
(i) guaranties by the Borrower and/or any other Subsidiary; providedRestricted Subsidiary of the obligations of suppliers, that customers and licensees in the ordinary course of business, (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
services and (fiii) Indebtedness in respect of performance bondsletters of credit, bid bondsbankers’ acceptances, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft guaranties or similar instrument drawn against insufficient funds in the ordinary course of business instruments supporting trade payables, warehouse receipts or other cash management services, in each case incurred similar facilities entered into in the ordinary course of business;
(h) Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent the outstanding principal amount thereof exceeds $1,000,000 on the Closing Date, described on Schedule 6.01;
(j) Indebtedness of Restricted Subsidiaries that are not Loan Parties; provided that the aggregate outstanding principal amount of such Indebtedness shall not exceed the greater of $30,000,000 and 30% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $25,000,000 and 25% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with any acquisition or similar Investment permitted hereunder after the Closing Date; provided that
(i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof and
(ii) such Indebtedness is in an aggregate principal amount outstanding not to exceed the greater of:
(A) if no Event of Default under Section 7.01(a), (f) or (g) exists immediately before or after giving effect thereto, an amount that may be incurred after giving Pro forma effect to which either:
(1) the Total Leverage Ratio does not exceed 5.90:1.00; or
(2) (x) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the First Lien Leverage Ratio does not exceed the First Lien Leverage Ratio as of the last day of the most recently ended Test Period, (y) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the Secured Leverage Ratio does not exceed the Secured Leverage Ratio as of the last day of the most recently ended Test Period or (z) if such Indebtedness is unsecured or is secured by assets that do not constitute Collateral, the Total Leverage Ratio does not exceed the Total Leverage Ratio as of the last day of the most recently ended Test Period; and
(B) the greater of $15,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Borrower or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (j), (m), (n), (q), (r), (u), (w), (y), and (z) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (j), (m), (n), (u) and/or (y) (other than Customary Bridge Loans), such Indebtedness has (A) a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, such Refinancing Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the outstanding Term Loans at such time,
(iii) the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (other than any Indebtedness of the type described in Section 6.01(m)) (excluding, to the extent applicable, pricing, fees, premiums, rate floors, optional prepayment, redemption terms or subordination terms and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by the Borrower), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenant or other provisions applicable only to any period after the applicable maturity date of the debt then-being refinanced as of such date, (B) any covenant or provision which are then-current market terms for the applicable type of Indebtedness or (C) solely in the case, of Refinancing Indebtedness in respect of Indebtedness incurred in reliance on clauses (a) and/or (z), any covenant or other provision which is conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)),
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n), (q) (solely as it relates to the amount of such Indebtedness that may be incurred by Restricted Subsidiaries that are not Loan Parties), (r), (u), (w) (solely as it relates to the amount of such Indebtedness that may be incurred by Restricted Subsidiaries that are not Loan Parties), (y) and (z) (solely as it relates to the Shared Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amount outstanding in reliance on the relevant clause such that the amount available under the relevant clause shall be reduced by the amount of the applicable Refinancing Indebtedness,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those (x) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or (y) set forth in any relevant Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that any entity that was a guarantor in respect of the relevant refinanced Indebtedness may be the primary obligor in respect of the refinancing Indebtedness, and any entity that was the primary obligor in respect of the relevant refinanced Indebtedness may be a guarantor in respect of the refinancing Indebtedness), (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)), and (D) as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default exists, and
(vi) in the case of Replacement Debt, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder (it being understood that any such Refinancing Indebtedness that is junior with respect to security shall be pari passu with, or junior to, the Second Lien Facility with respect to security), or is unsecured; provided that any such Indebtedness that is pari passu and/or junior with respect to the Collateral shall be subject to an Acceptable Intercreditor Agreement, (B) if the Indebtedness being refinanced, refunded or replaced is secured, it is not secured by any assets other than the Collateral, (C) if the Indebtedness being refinanced, refunded or replaced is Guaranteed, it shall not be Guaranteed by any Person other than one or more Loan Parties and/or the Lighthouse Common Equity Holders and (D) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement;
(q) so long as no Event of Default under Sections 7.01(a), (f) or (g) then exists or would result therefrom, Indebtedness incurred to finance any acquisition permitted hereunder after the Closing Date; provided that
(i) after giving effect thereto, including the application of the proceeds thereof (in each case, without “netting” the cash proceeds of the applicable Indebtedness being incurred):
(A) if such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the First Lien Leverage Ratio does not exceed the greater of (1) 4.50:1.00 and (2) the First Lien Leverage Ratio as of the last day of the most recently ended Test Period,
(B) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the Secured Leverage Ratio does not exceed the greater of (1) 5.90:1.00 and (2) the Secured Leverage Ratio as of the last day of the most recently ended Test Period or
(C) if such Indebtedness is unsecured or is secured by assets that do not constitute Collateral, either (1) the Total Leverage Ratio does not exceed the greater of (x) 5.90:1.00 and (y) the Total Leverage Ratio as of the last day of the most recently ended Test Period or (2) the Interest Coverage Ratio is not less than the lesser of (x) 2.00:1.00 and (y) the Interest Coverage Ratio as of the last day of the most recently ended Test Period,
(ii) any such Indebtedness that is subordinated to the Obligations in right of payment shall be subject to an Acceptable Intercreditor Agreement,
(iii) the aggregate outstanding principal amount of any such Indebtedness incu
Appears in 1 contract
Sources: First Lien Credit Agreement (Shift4 Payments, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 2,000,000 shall be set forth in on Schedule 6.01) and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than (x) intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment or any Subsidiary and (y) to the same extent required pursuant to Section 6.01(eset forth on Schedule 6.01);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness in respect of self-insurance and Indebtedness and other obligations owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicespractice;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit J hereto or on substantially identical subordination terms or other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practicespractice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practicespractice;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in each case incurred in the ordinary course of business or other cash management services, in each case services incurred in the ordinary course of businessbusiness or consistent with past practice;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Acquisition) or any Investment or New Project permitted hereunder, where such acquisition, merger or consolidation, Investment or New Project is not prohibited by this Agreement; provided, that (x) the Net Total Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger, consolidation, Investment or New Project, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than 3.00:1.00 and (y) in the case of any such Indebtedness incurred under this clause (h)(i) by a Subsidiary other than a Subsidiary Loan Party that is incurred in contemplation of such acquisition, merger or consolidation, Investment or New Project, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, Investment or New Project, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(h)(i)(y) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, shall not exceed the greater of $9,000,000 and 0.15 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (i) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, installation, repair, replacement or improvement of the respective property (real or personal), equipment or other asset (whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, repair, replacement or improvement, in an aggregate principal amount outstanding that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(i), would not exceed the greater of $15,000,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03 and (ii) any Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $15,000,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount not greater than 100% of the amount of net cash proceeds received by the Borrower from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions;
(m) Guarantees (i) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than
Appears in 1 contract
Sources: Credit Agreement (Open Lending Corp)
Indebtedness. IncurThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or permit otherwise become or remain liable with respect to exist any Indebtedness, except:
(a) the Obligations (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that including any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant to this clause (a) which is owed by a Loan Party to any subsidiary of the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eAdditional Term Loans);
(b) Indebtedness created hereunder of the Borrower to any Restricted Subsidiary and/or of any Restricted Subsidiary to the Borrower and/or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Restricted Subsidiary that is a Loan Party, such Indebtedness shall be permitted as an Investment under Section 6.06; provided, further, that any Indebtedness of any Loan Party owed to any Restricted Subsidiary that is not a Loan Party must be expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such Indebtednessan Intercompany Note);
(c) [reserved];
(d) Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date and not in contemplation thereof or any other purchase of assets or Capital Stock, and Indebtedness arising from guarantees, letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement;
(e) Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(f) Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts, including incentive, supplier finance or similar programs;
(i) guarantees by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods, services, CRE Finance Assets or Real Estate Investments or progress payments in connection with such assets, goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business;
(h) guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower or any Restricted Subsidiary with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06;
(i) Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and, to the extent in excess of $6,000,000 described on Schedule 6.01;
(j) [reserved];
(k) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
(l) Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
(m) Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Finance Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $50,000,000 and 0.36% of Consolidated Total Assets as of the last day of the most recently ended Test Period;
(n) Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition or any other similar investment permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation of such acquisition or investment or such Person becoming a Restricted Subsidiary and (ii) the Borrower is in compliance with Section 6.13(a) calculated on a Pro Forma Basis;
(o) Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of the Borrower or any current or former director, officer, employee, member of management, manager or consultant of the Borrower or any Subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of the Borrower permitted by Section 6.04(a);
(p) Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (a), (i), (m), (n), (r), (u), (y), and (z) of this Section 6.01 (“Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
(i) the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to Hedging Agreements this Section 6.01 (provided that (x) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (y) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
(ii) other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (r), (u) and/or (y) (and other than customary bridge loans with a maturity date of not longer than one year; provided that any loans, notes, securities or other Indebtedness which are exchanged for or otherwise replace such bridge loans shall be subject to the requirements of this clause (ii)), such Indebtedness has (A) subject to the Permitted Earlier Maturity Indebtedness Exception, a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Initial Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) subject to the Permitted Earlier Maturity Indebtedness Exception and other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any Prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the remaining Weighted Average Life to Maturity of the outstanding Initial Term Loans at such time,
(iii) [reserved],
(iv) in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (m), (r), (u) and (z) (solely as it relates to the Base Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause,
(v) except in the case of Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) of this Section 6.01 incurred as Replacement Term Loans, (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and, to the extent the Liens securing such Indebtedness were contractually subordinated at time of such refinancing to the Liens on the Collateral securing the Initial Term Loans, the Liens securing such Indebtedness either constitute Permitted Liens (other than pursuant to Section 6.02(k)) or are subordinated to the Liens on the Collateral securing the Initial Term Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, or set forth in, or otherwise subject to, an Acceptable Intercreditor Agreement, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01, (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i), and
(vi) in the case of Replacement Notes, (A) such Indebtedness is pari passu or junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to the remaining Obligations hereunder, or is unsecured; provided that any such Indebtedness that is secured by Liens on the Collateral shall be subject to any applicable Acceptable Intercreditor Agreements, (B) such Indebtedness is not secured by any assets other than the Collateral and shall not be incurred or Guaranteed by any Person other than one or more Loan Parties, (C) such Indebtedness is incurred under (and pursuant to) documentation other than this Agreement, and (D) if such Replacement Notes are incurred to refinance Indebtedness outstanding under the Loan Documents, then, except as otherwise set forth above in this Section 6.01(p), the other terms and conditions of such Replacement Notes, if not substantially identical to those applicable to the Indebtedness being refinanced (as determined by the Borrower in good faith), must either, at the option of the Borrower, (x) not be materially more restrictive to the Borrower and its Restricted Subsidiaries (as determined by the Borrower in good faith) than (when taken as a whole) those contained in the Indebtedness being refinanced (other than any terms which are applicable only after the then-existing Latest Maturity Date with respect to such Indebtedness), (y) be conformed (or added) to the Loan Documents for the benefit of the applicable Term Lenders or, as applicable, the Administrative Agent (i.e., by conforming or adding a term to the then-outstanding Term Loans pursuant to the applicable Incremental Facility Amendment, it being understood that, without limitation, any amendment or modification to the Loan Documents that solely adds one or more terms for the benefit of the existing Term Lenders shall not require the consent of any such existing Term Lender so long as the form (but not the substance) of the applicable agreement effecting such amendment or modification is reasonably satisfactory to the Administrative Agent) or (z) reflect then current market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by the Borrower in good faith); it being understood and agreed that any such Indebtedness that is pari passu with the Initial Term Loans hereunder in right of payment and secured by the Collateral on a pari passu basis with respect to the Secured Obligations hereunder that are secured on a first lien basis may participate (x) in any voluntary prepayments of Term Loans as set forth in Section 2.11(a)(i) and (y) in any mandatory prepayments of Term Loans as set forth in Section 2.11(b);
(q) [reserved];
(r) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed 200% of the amount of Net Proceeds received by the Borrower from any cash contribution (made in Cash or converted into Cash) to the common equity of the Borrower and from the issuance and sale by the Borrower of its Qualified Capital Stock, in each case, (i) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries and (ii) other than the Available Excluded Contribution Amount, Cure Amounts and amounts otherwise applied under the Available Amount to incur a transaction (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
(s) Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for non-speculative purposes;
(dt) Indebtedness owed of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
(u) Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the sum of (i) the greater of $185,000,000 and 1.325% of Consolidated Total Assets as of the last day of the most recently ended Test Period, plus (ii) at the election of the Borrower (and without duplication), any amount reallocated to this Section 6.01(u)(ii) from Section 6.04(a)(x) (provided that the Borrower may reallocate to Section 6.04(a)(x) any unutilized amounts under this 6.01(u)(ii) that were originally reallocated from Section 6.04(a)(x)));
(v) [reserved];
(w) [reserved];
(x) [reserved];
(y) [reserved];
(z) Incremental Equivalent Debt;
(aa) Indebtedness (including obligations in respect of letters of credit or credit, bank guarantees guaranties, surety bonds, performance bonds or similar instruments for with respect to such Indebtedness) incurred by the benefit of) Borrower and/or any person providing workers’ compensationRestricted Subsidiary in respect of workers compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification reimbursement-type obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practicesregarding workers compensation claims;
(ebb) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;Restricted
Appears in 1 contract
Sources: Term Loan Credit Agreement (Blackstone Mortgage Trust, Inc.)
Indebtedness. Incur, create, assume or permit to exist any Indebtedness, except:
(a) (xi) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Closing Date (provided, that any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount (x) not intercompany Indebtedness and (y) in excess of $5,000,000 shall be set forth in on Schedule 6.01) ), and (yii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany Indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) (i) Indebtedness created hereunder (including pursuant to Section 2.212.21 (whether prior to, Section 2.22 and Section 2.23on or after the Eighth Amendment Agreement Effective Date)) and under the other Loan Documents Documents, and (ii) any Permitted Refinancing Notes Indebtedness incurred to Refinance such Indebtedness;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Loan Parties incurred pursuant to this Section 6.01(e) shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor Loan Party incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on subordination terms described in the intercompany note substantially in the form of Exhibit I hereto or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a person merged or consolidated with the Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that, (w) in the case of any such Indebtedness secured by Liens on Collateral that are Other First Liens, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.20 to 1.00 or (II) not greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (x) in the case of any such Indebtedness secured by Liens on Collateral that are Junior Liens, the Net Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not greater than 3.60 to 1.00 or (II) not greater than the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of any other such Indebtedness, the Interest Coverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is (I) not less than 2.00 to 1.00 or (II) not less than the Interest Coverage Ratio in effect immediately prior thereto and (z) in the case of any such Indebtedness incurred under this clause (h) by a Subsidiary other than a Subsidiary Loan Party, the aggregate outstanding principal amount of such Indebtedness immediately after giving effect to such acquisition, merger or consolidation, the incurrence of such Indebtedness and the use of proceeds thereof and any related transactions shall not exceed the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that the incurrence (but not assumption) of term loan Indebtedness pursuant to clause (i)(w) above shall be subject to the last paragraph of Section 6.02; and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (x) Capitalized Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or within 270 days after the acquisition, lease, construction, repair, replacement or improvement of the respective property (real or personal, and whether through the direct purchase of property or the Equity Interest of any person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacement or improvement, in an aggregate principal amount that immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), would not exceed the greater of $250,000,000 and 0.075 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(i) Capitalized Lease Obligations and any other Indebtedness incurred by the Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiaries in an aggregate outstanding principal amount not greater than 100% of the net cash proceeds received by the Borrower after the Closing Date from (x) the issuance or sale of its Qualified Equity Interests or (y) a contribution to its common equity with the net cash proceeds from the issuance and sale by Holdings or a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in each case of (x) and (y), other than proceeds from the sale of Equity Interests to, or contributions from, the Borrower or any of its Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions;
(m) Guarantees (i) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(t) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided, that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the 2015 Transactions, the ADT Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practices;
(p) (i) Indebtedness, including Indebtedness in respect of the Second Priority Senior Secured Notes, in an aggregate principal amount outstanding pursuant to this Section 6.01(p) not to exceed $3,140,000,000 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Other First Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.20 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(q)(i), Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of term loan Indebtedness pursuant to this clause (q)(i) shall be subject to the last paragraph of Section 6.01 and the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 3.60 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), this Section 6.01(r)(i) and Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any term loan Indebtedness pursuant to this clause (r)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) unsecured Indebtedness so long as immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, the Interest Coverage Ratio on a Pro Forma Basis is not less than 2.00 to 1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (s)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), Section 6.01(r)(i) and this Section 6.01(s)(i) that are incurred by Subsidiaries other than the Subsidiary Loan Parties, the greater of $475,000,000 and 0.17 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period and (y) the incurrence of any term loan Indebtedness pursuant to this clause (s)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(t), would not exceed the greater of $350,000,000 and 0.12 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(u) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Hedging Agreements;
(v) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness in connection with Permitted Securitization Financings;
(x) obligations in respect of Cash Management Agreements;
(i) Refinancing Notes and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount outstanding not to exceed the Incremental Amount available at the applicable time of determination set forth in the definition thereof; provided that the incurrence of term loan Indebtedness pursuant to this clause (z)(i) shall be subject to the last paragraph of Section 6.02, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(aa) Guarantees of Indebtedness under customer financing lines of credit entered into in the ordinary course of business;
(i) Indebtedness of, incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), would not exceed the greater of $150,000,000 and 0.05 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(cc) Indebtedness issued by the Borrower or any Subsidiary to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness consisting of obligations of the Borrower or
Appears in 1 contract
Sources: Amendment Agreement No. 8 (ADT Inc.)
Indebtedness. IncurThe Borrower will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Effective Date (provided, that including any such Indebtedness that is owed to any person other than the Borrower and/or one or more of its Subsidiaries, in an aggregate amount in excess of $5,000,000 shall be set forth in on Schedule 6.01) and (y) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, that any Indebtedness outstanding pursuant (other than intercompany indebtedness Refinanced with Indebtedness owed to this clause (a) which is owed by a Loan Party to any subsidiary of person not affiliated with the Borrower that is not a Loan Party shall be subordinated in right of payment to the same extent required pursuant to Section 6.01(eor any Subsidiary);
(b) Indebtedness created hereunder (including pursuant to Section 2.21, Section 2.22 and Section 2.23) and under the other Loan Documents and any Refinancing Notes incurred to Refinance such IndebtednessSecured Obligations;
(c) Indebtedness of the Borrower or any Subsidiary pursuant to Hedging Swap Agreements not entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in respect of letters of credit or bank guarantees or similar instruments for the benefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business or consistent with past practice or industry practices;
(e) Indebtedness of the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, provided that (i) Indebtedness of any Subsidiary that is not a Subsidiary Loan Party owing to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04 and (ii) Indebtedness owed by any Loan Party to any Subsidiary that is not a Guarantor incurred pursuant to this Section 6.01(e) (other than intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations of the Borrower and the Subsidiaries) Subsidiary Loan Party shall be subordinated in right of payment to the Loan Secured Obligations under this Agreement on subordination terms substantially in the form of Exhibit B or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligationsobligations of the Borrower and the Subsidiaries, in each case provided case, reasonably required in the ordinary course of business or consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations of the Borrower and its Subsidiaries in the ordinary course of business or consistent with past practice or industry practicesand otherwise as permitted by the Loan Documents;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business or other cash management services, in each case incurred in the ordinary course of business;
(i) Indebtedness incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement and such Indebtedness is not created in contemplation of or in connection with such acquisition, in each case so long as at the time of any such incurrence or assumption and immediately after giving effect (including giving effect on a Pro Forma Basis) thereto the Borrower is in compliance with the Financial Performance Covenants, and (ii) any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) (x) Capital Lease Obligations, mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary in order to finance the acquisition, lease, construction, repair, replacement or improvement of property (real or personal, and whether through the direct purchase of property or the Equity Interests of any person owning such property), in each case so long as at the time thereof and immediately after giving effect (including giving effect on a Pro Forma Basis) thereto the Borrower is in compliance with the Financial Performance Covenants, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiary in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness in respect thereof;
(k) [reserved];
(l) Guarantees (i) by the Borrower or any Subsidiary Loan Party of any Indebtedness of the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Subsidiary that is not the Borrower or a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)), (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(y) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v)); provided that Guarantees by the Borrower or any Subsidiary Loan Party under this Section 6.01(l) of any other Indebtedness of a person that is subordinated in right of payment to other Indebtedness of such person shall be subordinated in right of payment to the Obligations to at least the same extent such other Indebtedness is so subordinated;
(m) Indebtedness arising from agreements of the Borrower or any Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with the Transactions, any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement;
(n) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business or consistent with past practice or industry practice;
(o) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(p) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(i) Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $126,000,000 and 15.0% of EBITDA for the most recently ended Test Period and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(r) [reserved];
(i) Indebtedness of the Borrower or any Subsidiary Loan Party so long as immediately after giving effect (including giving effect on a Pro Forma Basis) to the incurrence or assumption of such Indebtedness and the use of proceeds thereof (including any Permitted Business Acquisitions or other similar Investments but without netting any of the proceeds thereof), (A) the Borrower is in compliance with the Financial Performance Covenants and (B) no Event of Default shall have occurred and be continuing and (ii) Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness incurred in the ordinary course of business in respect of the obligations of the Borrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money or any Swap Agreements;
(u) Indebtedness representing deferred compensation to employees, consultants or independent contractors of the Borrower (or, to the extent such work is done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(v) obligations in respect of Banking Services Agreements;
(w) [reserved];
(x) [reserved];
(y) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate principal amount outstanding that, immediately after giving effect to the incurrence thereof, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(y), would not exceed the greater of $252,000,000 and 30.0% of EBITDA for the most recently ended Test Period, and any Permitted Refinancing Indebtedness in respect thereof;
(z) [reserved];
(aa) [reserved];
Appears in 1 contract