Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the following: (a) the Loans and Obligations; (b) 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 (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof; (e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent; (f) Indebtedness in respect of Banking Services; (g) trade payables and similar 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 any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; (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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) the Loans Existing Notes, (ii) [reserved] and Obligations(iii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary of the Borrower);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment or financing plans for Indebtedness of the payment of insurance policy premiumsBorrower and its Relevant Subsidiaries pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Relevant Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such agreement, or (ii) any Mortgage Indebtedness incurred to finance, or assumed Person in connection with, an acquisition or Investment in a Hotel Property (or part the ordinary course 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofbusiness;
(e) Indebtedness of a the Borrower or any Relevant Subsidiary owing to the Borrower or any Subsidiary of the Borrower to the extent permitted by Section 6.04, provided that Indebtedness of any Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 (the “Subordinated Intercompany Debt”) shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar current obligations to a trade creditor incurred obligations, in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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, each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business 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;
(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 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 workers compensation claims, health, disability credit 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 claimspurchase 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 (including Capitalized Lease Obligations) incurred by together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) any Subsidiary or 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 JV Subsidiary Total Assets as of the Borrower that is not a Loan Party in end of the ordinary course fiscal quarter immediately prior to the date of business not more than 180 days before or after the such acquisition, constructionmerger, repairamalgamation or consolidation, replacementsuch assumption or such incurrence, leaseas applicable, expansionfor 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, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and purchase money Indebtedness incurred by the Borrower or any Relevant Subsidiary prior to or Controlled JV Subsidiarywithin 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, constructionlease or improvement, repairand any Permitted Refinancing Indebtedness in respect thereof, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 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 exceed $10,000,000be 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, 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 business not more than 180 days before or after 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 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 on ordinary course of business and not for speculative purposes and guarantees thereof;
(k) Indebtedness incurred under the ERF Program terms in an aggregate amount at any time not to exceed the greater of $100,000,000 (or such other increased amount as may be approved by the Required Lenders25.0 million and 0.5% of Consolidated Total Assets outstanding at any time);
(li) without duplication 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 other Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness, ; and
(r) all premiums premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges additional or contingent interest on obligations described in paragraphs (a) through (q) above. For purposes of determining compliance with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
(m) this Section 6.01, (i) Guarantees by a Loan Party in the event that an item of Indebtedness (or any portion thereof) meets the criteria of Property-Level Subsidiaries 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 extent consisting categories of Guarantees that do not provide any greater recourse to the applicable Loan Party than the Mortgage Recourse Carve-OutsIndebtedness permitted in this Section 6.01; provided that such Guarantees are entered into in the ordinary course of business and (ii) Guarantees by Controlled JV Subsidiaries at the time of incurrence, the Borrower or Subsidiaries that do not constitute Loan Parties a Relevant Subsidiary, as the case may be, in respect its sole discretion, may divide and classify an item of Indebtedness otherwise permitted hereunder;
(nor any portion thereof) Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants in more than one of the Loan Parties and/or any categories of their respective Subsidiaries and Controlled JV Subsidiaries Indebtedness permitted 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-Outsthis 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. Create, incur, assume or suffer to exist any Indebtedness other than the followingor Contingent Obligation, except:
(a) the Loans Finance Obligations, including any Indebtedness of the Parent, the Company or any Restricted Subsidiary in connection with the Letters of Credit and Obligationsthis Agreement;
(b) Mortgage Indebtedness as of (i) a Credit Party owing to any Restricted Subsidiary; provided that all such Indebtedness shall be subordinated to the date hereof Finance Obligations on terms and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase conditions satisfactory to the principal amount thereofAdministrative Agent, and (ii) any Permitted Refinancings thereofRestricted Subsidiary owing to a Credit Party or any other Restricted Subsidiary to the extent the Indebtedness referred to in this clause (b) evidences a loan or advance permitted under Section 9.7;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiumsIndebtedness arising under any Swap Contract permitted by Section 9.11;
(d) Indebtedness arising from (i) any agreement providing for indemnificationconsisting of reimbursement obligations under surety, adjustment indemnity, performance, release and appeal bonds and guarantees thereof and letters of purchase price credit required in the ordinary course of business or similar obligations (including contingent earn-out obligations) incurred in connection with any Investment the enforcement of rights 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 finance, or assumed in connection with, an acquisition or Investment in a Hotel Property (or part claims of a Hotel Property) Credit Party 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofits Restricted Subsidiaries;
(e) (i) Indebtedness of a Loan Party the Company or any of its Restricted Subsidiaries incurred to finance the acquisition, repair, replacement, construction or improvement of any other Loan Party and/or any Subsidiary fixed or Controlled JV Subsidiarycapital assets, including capital lease obligations, and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Subsidiary or Controlled JV Subsidiary Lien on any such assets prior to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Partythe acquisition thereof; provided that any (A) such Indebtedness is incurred prior to or within ninety (90) days after such acquisition, repair, replacement, construction or improvement, (B) the aggregate principal amount of a Loan Party Indebtedness permitted by this clause (e) shall not at any one time exceed $50,000,000 and (ii) any Permitted Refinancing Indebtedness 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 a Subsidiary exceed $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; and
(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, the Company or Controlled JV Subsidiary any of its Restricted Subsidiaries existing on the Closing Date and listed on Schedule 9.2(h) hereto and any Permitted Refinancing Indebtedness in respect thereof;
(i) (A) unsecured Indebtedness of the Parent, the Company or any Restricted Subsidiary: (i) the principal of which is not required to be repaid, in whole or in part, before the date that is not a Loan Party shall be contractually the 91st day following the Revolving Credit Termination Date, (ii) that is subordinated in right of payment to the prior repayment Obligations under the Credit Documents pursuant to payment and subordination provisions satisfactory in full of the Obligations on terms reasonably satisfactory 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;
(fA) Indebtedness of any Person that becomes a Restricted Subsidiary after the date hereof pursuant to a Permitted Acquisition and Indebtedness of any Person secured by assets acquired in a Permitted Acquisition, provided, that (i) such Indebtedness exists at the time such Person becomes Restricted Subsidiary or such assets are acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary or such assets being acquired and (ii) that aggregate principal amount of Indebtedness permitted by this clause (j) shall not at any one time exceed $50,000,000 and (B) any Permitted Refinancing Indebtedness in respect of Banking Servicesthereof;
(gk) trade payables and similar current the following Contingent Obligations:
(i) guarantees of obligations to a trade creditor third parties made in the ordinary course of business in connection with relocation of employees of the Parent, the Company or any of its Restricted Subsidiaries;
(ii) guarantees by the Parent, the Company and its Restricted Subsidiaries of obligations incurred in the ordinary course of business and for an aggregate amount not evidenced to exceed $10,000,000 at any time; provided, however, that any such Contingent Obligation in the form of a guarantee granted by a noteRestricted Subsidiary shall only be given in accordance with Section 9.15;
(hiii) 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 incurred by of its Restricted Subsidiaries permitted under Section 9.2(i) and (B) a Loan Credit Party or any Restricted Subsidiary of its 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 Controlled JV Subsidiaries 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 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;
(m) Indebtedness in respect of letters of credit (including trade letters of credit), bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, incurred in the ordinary course of business, including in respect of card obligations or any overdraft 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 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 in respect of judgments and decrees that do not constitute an Event of Default;
(o) Indebtedness consisting of obligations to make payments to current or former directors, officers, directors and employees, members their respective estates, spouses or former spouses with respect to the cancellation, or to finance the purchase or redemption, of management, managers, and consultants Equity Interests of the Loan Parties and/or any 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 respective Subsidiaries and Controlled JV Subsidiaries affiliates or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; and
(oq) any other Indebtedness incurred in the ordinary course an aggregate principal amount outstanding of business under performance, surety, statutory and appeal bonds. In furtherance of the foregoing, no Property-Level Subsidiary which shall create, incur, assume or suffer to exist not exceed at any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outstime 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. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01 to the Original Credit Agreement) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage (i) Indebtedness as of created hereunder (including pursuant to Section 2.21) and under the date hereof other Loan Documents and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and (ii) any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated 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 Agent 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 respect past practice or industry practices, including those incurred to reimbursement-type secure health, safety and environmental obligations regarding workers compensation claimsin 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) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, replacementreplacement 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, expansionconstruction, developmentrepair, installation, relocation, renewal, maintenance, upgrade replacement or improvement of such fixed or capital asset; provided that 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 7.02(i)(i) shall be without recourse to any Loan Parties 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 Loan Party Permitted Refinancing Indebtedness in respect thereof;
(l) Indebtedness of the Borrower or any Subsidiary in an aggregate outstanding principal amount at 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 time 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 exceed $10,000,000be 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 not more 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 180 days before or after Section 6.04(v)); provided, that Guarantees by 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 order Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement other Indebtedness of such fixed or capital assetperson shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(jn) 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 Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred 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 speculative purposes the then most recently ended Test Period and guarantees (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;
(ki) 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 under by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the ERF Program in an aggregate principal 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 Indebtedness outstanding pursuant to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
(mSection 6.01(h)(i) (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries to the extent consisting 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 Guarantees that do not provide $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 greater recourse Indebtedness for borrowed money pursuant to this clause (r)(i) shall be subject to the applicable Loan Party than the Mortgage Recourse Carve-Outs; provided that such Guarantees are entered into in the ordinary course last paragraph of business this Section 6.01, and (ii) Guarantees 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 Controlled JV 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 or 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 do are not constitute 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 of Indebtedness otherwise permitted hereunderthereof;
(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
(ou) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, no Property-Level 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 shall create, incur, assume or suffer 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 exist exceed at the time of incurrence the Incremental Amount available at such time; provided that the incurrence of any Indebtedness that is recourse for borrowed money pursuant to any Loan Party, other than Mortgage Recourse Carve-Outs.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. Create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) the Loans and Obligations;
(b) Mortgage Indebtedness as Each 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 thereofLoan Parties shall not, and any Permitted Refinancings thereof;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from (i) any 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 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, shall not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 permit any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of creditto, 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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, except:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness as 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 7.2.1);
(iii) as and to the extent permitted pursuant to clause (ix) of the definition of “Permitted Liens”, Indebtedness incurred with respect to Purchase Money Security Interests and Capital Leases;
(iv) Indebtedness of a Loan Party to another Loan Party;
(v) Indebtedness of a Loan Party to a Subsidiary which is not a Loan Party which is subordinated pursuant to the Intercompany Subordination Agreement;
(vi) Any (i) Lender Provided Interest Rate Hedge, (ii) other Interest Rate Hedge approved by the Administrative Agent, or (iii) Indebtedness 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 (rather than speculative) purposes;
(vii) Indebtedness in connection with Permitted Acquisitions (A) to sellers in an amount not to exceed $25,000,000 in the aggregate outstanding at any time, provided that such Indebtedness has a maturity of at least 180 days following the Expiration Date and is recourse subordinated to the Obligations on terms reasonably acceptable to the Administrative Agent, and (B) as disclosed in a certain confidential side letter of even date herewith;
(viii) Indebtedness in respect of financing of 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 PartyParty 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 Mortgage Recourse Carve-OutsSubordinated 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. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 Loan Party shall be subordinated 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 Agent 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;
(g) Indebtedness arising from the honoring by a bank or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, replacementreplacement or improvement, leasein an aggregate principal amount that immediately after giving effect to the incurrence thereof, expansiontogether with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), development, installation, relocation, renewal, maintenance, upgrade or improvement 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 fixed incurrence for which financial statements have been delivered pursuant to Section 5.04(a) or capital asset; provided that 5.04(b) plus (B) any Indebtedness incurred 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 7.02(i)(i6.03 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 without recourse subject to any Loan Parties 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 in an aggregate amount at of any time 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 exceed $10,000,000the 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 not more 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 180 days before or after Section 6.04(v)); provided, that Guarantees by 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 order Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement other Indebtedness of such fixed or capital assetperson shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(jn) 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 Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred 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 not for speculative purposes and guarantees (ii) any Permitted Refinancing Indebtedness in respect thereof;
(kq) 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 consisting 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 the financing 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 insurance premiums or (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties take-or-pay obligations contained in respect of Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current or former directorssupply arrangements, officersin each case, 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;
(oi) 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 under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower 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 Property-Level Subsidiary shall create, incur, assume or suffer to exist obligor in respect of any such Indebtedness that is recourse 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 Loan PartyPermitted 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 Mortgage Recourse Carve-Outs.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. CreateNo Loan Party shall, nor shall it permit any of its Subsidiaries or the LS&Co. Trust to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness owed by the Loans U.S. Borrower or any of its Subsidiaries to the U.S. Borrower or any of its Subsidiaries; provided that (x) any Indebtedness owed by a Loan Party to a Subsidiary that is not a Loan Party shall be subordinated to the 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 a Canadian Loan Party shall be subordinated to the Obligations;
(b) Mortgage Indebtedness as of the U.S. Loan Parties issued in a Capital Markets Transaction, provided such Indebtedness is unsecured and such Indebtedness does not have a stated maturity date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase required principal payments earlier than 91 days after the principal amount thereof, and any Permitted Refinancings thereofMaturity Date;
(c) Monthly payment, installment or financing plans for Guarantees of the payment U.S. Borrower under the LS&Co. Trust Agreement; provided that the investment activities of insurance policy premiumsthe LS&Co. Trust are in compliance with the Investment Policies;
(d) Guarantees of (i) the U.S. Loan Parties in respect of the obligations of Loan Parties, (ii) the Canadian Loan Parties in respect of the obligations of Canadian Loan Parties and (iii) Foreign Subsidiaries that are not Loan Parties in respect of the obligations of Foreign Subsidiaries that are not Loan Parties, in each case, arising under or in connection with Banking Services in the ordinary course of business;
(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 time outstanding;
(h) Indebtedness of the U.S. Borrower or any Subsidiary 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, in which case, the Minimum Intercompany Transaction Requirement need not be met), 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 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(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 (i) agreements of the U.S. Borrower or any agreement 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 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 (including contingent earn-out obligations) and other unsecured Guarantees of the U.S. Borrower incurred in connection with any Investment Permitted Foreign Receivables Transaction 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofForeign Inventory Transaction;
(en) Indebtedness of a Loan Party the U.S. Borrower to any other Loan Party and/or of its Subsidiaries or of any Subsidiary or Controlled JV Subsidiary, and Indebtedness of a Subsidiary or Controlled JV Subsidiary its Subsidiaries 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 its Subsidiaries in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor connection with transactions incurred in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 value thereof and any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetrelated servicing fees;
(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 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Indebtedness. Create, incur, assume or assume, suffer to exist exist, guarantee, or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness evidenced by this Agreement and the Loans and Obligations;other Loan Documents,
(b) Mortgage Indebtedness as of outstanding on the date hereof Closing Date and listed set forth 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;Reporting Addendum,
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiumsintercompany loans and advances permitted by Section 7.11;
(d) Indebtedness arising from (including Guarantees) in respect of (i) any agreement performance, surety, bid, appeal or similar bonds, completion guarantees or similar instruments, including letters of credit and bankers acceptances (not incurred for the purpose of borrowing money), in each case provided in the ordinary course of business, (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 similar obligations (including contingent earn-out obligations) incurred in connection with any Investment , or Disposition permitted hereunder and Indebtedness comprising guarantees, from guarantees or letters of credit, bank guaranties, surety bonds, bonds or performance bonds or similar instruments securing the performance any obligations pursuant to such agreement, or (ii) any Mortgage Indebtedness incurred to finance, or assumed in connection with, an acquisition or Investment in a Hotel Property (or part of a Hotel Property) or with the direct or indirect Equity Interests disposition of any Person that owns a Hotel Propertybusiness, not to exceed 70% assets or Subsidiary of the fair market value (determined as of the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofBorrower;
(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 of a Loan Party 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 any other Loan Party and/or any Subsidiary or Controlled JV Subsidiarysuch acquisition, provided that (i) such Indebtedness was not incurred in contemplation of such acquisition, and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; provided that any (ii) such Indebtedness in respect thereof shall not be secured by any assets other than some or all of the 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 Loan Party 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 a Subsidiary or Controlled JV Subsidiary the applicable Credit Party, (iv) if the Indebtedness that is not a Loan Party shall be contractually refinanced, renewed, or extended was subordinated in right of payment to the prior repayment in full 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 on terms reasonably satisfactory other than those Persons which were obligated with respect to the Administrative AgentIndebtedness that was refinanced, renewed, or extended;
(fi) Indebtedness in Guarantees with respect of Banking Services;
(g) trade payables to bonds issued to support workers’ compensation, unemployment or other insurance or self-insurance obligations, and similar current obligations to a trade creditor incurred obligations, in the ordinary course of business and not evidenced by a note;
(h) Indebtedness each case, incurred by a Loan Party Borrower or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 the form of Swap Contracts designed to hedge against the Borrower’s any earnout or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks 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 not for speculative purposes and guarantees thereof;
(k) Indebtedness incurred under the ERF Program otherwise 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)connection with deposit accounts;
(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) Guarantees (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries otherwise permitted 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 be incurred hereunder or (ii) granted in the ordinary course of business of the obligations of suppliers, customers, franchisees and (ii) Guarantees by Controlled JV Subsidiaries licensees of Borrower or Subsidiaries that do not constitute Loan Parties in respect any of Indebtedness otherwise permitted hereunderits Subsidiaries;
(nm) Indebtedness representing deferred compensation incurred by Excluded Subsidiaries to current fund the origination or former directorspurchase of receivables or the purchase of goods to be held for lease, officers, employees, members of management, managers, and consultants of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries in either case in the ordinary course of business; and
(on) Other Indebtedness incurred of Borrower or any of its Subsidiaries in the ordinary course an aggregate face and/or principal amount at any time outstanding not in excess 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$1,000,000.
Appears in 2 contracts
Sources: Loan and Security Agreement (Atlanticus Holdings Corp), Loan and Security Agreement (Atlanticus Holdings Corp)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Loans 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 Obligations;
(by) 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 (i) any 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 Refinancing Indebtedness incurred to financeRefinance such Indebtedness; provided, or assumed in connection with, an acquisition or Investment in a Hotel Property that any Indebtedness outstanding pursuant to this clause (or part of a Hotel Propertya) 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of which is owed by a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory same extent required pursuant to the Administrative AgentSection 6.01(e);
(fb) Indebtedness in respect of Banking Servicescreated 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;
(g) trade payables and similar current obligations to a trade creditor incurred in the ordinary course of business and not evidenced by a note;
(hc) Indebtedness incurred by a Loan Party of the Borrower or any of its Subsidiaries Subsidiary pursuant to Hedging Agreements or Controlled JV Subsidiaries in respect of letters of creditany other swap, bank guarantees, bankers’ acceptances, warehouse receipts hedging or similar instruments issued or created, or relating to obligations or liability incurred, 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 workers compensation claimsletters 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 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 or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business not more than 180 days before or after consistent with past practice or industry practices;
(e) Indebtedness of the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement Borrower to any Subsidiary and of a fixed or capital asset incurred by any Subsidiary to the Borrower or any Subsidiary or Controlled JV other Subsidiary; provided, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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) owed by any Loan Party in an aggregate amount at to any time Subsidiary that is not a Guarantor incurred pursuant to exceed $10,000,000, 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 its Subsidiaries) shall be subordinated in right of payment to the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agent (but only to the extent permitted by applicable law and not more than 180 days before or after 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 order giving rise to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetmaterial adverse Tax consequences);
(jf) Indebtedness in respect of Swap Contracts designed 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 hedge 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 Borrower’s ordinary course of business or any Subsidiary’s exposure to interest ratesother cash management services, foreign exchange rates or commodities pricing risks in each case incurred in the ordinary course of business and not for speculative purposes and guarantees thereofbusiness;
(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 2 contracts
Sources: Credit Agreement (Westrock Coffee Co), Incremental Assumption Agreement and Amendment No. 1 (Westrock Coffee Co)
Indebtedness. CreateThe Borrower will not, incurnor will it permit any Subsidiary to, assume create, incur or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(ai) the The Loans and the Reimbursement Obligations;.
(bii) Mortgage Indebtedness existing on the date hereof and described in the Disclosure Schedule.
(iii) Indebtedness arising under Rate Management Transactions permitted by Section 7.11.
(iv) Contingent Obligations permitted by Section 7.10.
(v) Non-recourse Indebtedness as to which none of Borrower or its Subsidiaries (i) provides any guaranty or credit support of any kind (including any undertaking, guarantee, indemnity, agreement or instrument that would constitute Indebtedness) or (ii) is directly or indirectly liable (as a guarantor or otherwise); provided, that after giving effect to such Indebtedness outstanding from time to time, Borrower is not in violation of Article VIII.
(vi) Indebtedness of Borrower in respect of guarantee obligations of Cimarex Energy Services, Inc., an Oklahoma corporation, which do not in the aggregate exceed $75,000,000 at any one time outstanding.
(vii) Indebtedness evidenced by the Senior Notes, and guarantee obligations of Subsidiaries in respect thereof; provided, that, such guarantee obligations exist as of the date hereof hereof, are required by the terms of the Indentures, or are otherwise on terms and listed on Schedule 5.07(b)conditions satisfactory to the Administrative Agent in its sole reasonable discretion.
(viii) Permitted Bond Indebtedness, any renewals, amendments, modifications or extensions thereof that do not increase and guarantee obligations of Subsidiaries of the principal amount Borrower in respect thereof, and any Permitted Refinancings thereof;
(c) Monthly paymentprovided, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from (i) any agreement providing for indemnificationthat, adjustment of purchase price or similar such guarantee 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations are on terms reasonably and conditions satisfactory to the Administrative Agent;, in its sole reasonable discretion.
(fix) Indebtedness in respect of Banking Services;any 9.60% Senior Notes Refinancing, and guarantee obligations of Subsidiaries of the Borrower in respect thereof, provided, that, such guarantee obligations are on terms and conditions satisfactory to the Administrative Agent, in its sole reasonable discretion.
(gx) trade payables and similar current obligations to a trade creditor incurred in the ordinary course of business and not evidenced by a note;Financial Contracts permitted under Section 7.11.
(hxi) Miscellaneous items of Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries not described 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
subsections (i) Indebtedness through (including Capitalized Lease Obligationsx) incurred by (i) any Subsidiary or Consolidated JV Subsidiary of the Borrower that is above which do not a Loan Party in the ordinary course aggregate (taking into account all such Indebtedness of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(iand its Subsidiaries) shall be without recourse to any Loan Parties and (ii) any Loan Party in an aggregate amount exceed $25,000,000 at any one time not to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after 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 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-Outsoutstanding.
Appears in 2 contracts
Sources: Credit Agreement (Cimarex Energy Co), Credit Agreement (Cimarex Energy Co)
Indebtedness. CreateNo Credit Party shall, and no Credit Party shall permit any Subsidiary to, create, incur, assume assume, guarantee, or suffer be or remain liable with respect to exist any Indebtedness Indebtedness, other than the following:
(a) 7.1.1. the Loans and Obligations;
(b) Mortgage 7.1.2. existing Indebtedness as of the date hereof and listed on Schedule 5.07(b5.19 (under the caption “Other Indebtedness”) and any Permitted Refinancings thereof;
7.1.3. obligations of the Credit Parties and their Subsidiaries arising out of any Swap Contract with financial institutions in connection with bona fide hedging activities in the ordinary course of business and not for speculative purposes;
7.1.4. current liabilities on open accounts for the purchase price of services, materials, and supplies incurred by a Credit Party or Subsidiary in the ordinary course of business (not as a result of borrowing), so long as all of such open account Indebtedness shall be paid promptly and discharged when due or in conformity with customary trade terms and practices, except for any renewalssuch unpaid open account Indebtedness that is being contested in good faith by a Credit Party or Subsidiary, amendmentsas to which adequate reserves required by GAAP have been established and are being maintained, modifications and as to which no Lien has been placed on any property of such entity;
7.1.5. endorsement of items for deposit or extensions thereof collection of commercial paper received in the ordinary course of business;
7.1.6. guaranties by any Credit Party or Subsidiary of Indebtedness of any Credit Party that do not increase the principal amount thereofis permitted to be incurred hereunder, and any Permitted Refinancings thereof;
(c) Monthly payment, installment or financing plans for the payment of 7.1.7. Indebtedness owed to insurance policy premiums;
(d) Indebtedness arising from (i) any 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 carriers 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor incurred in the ordinary course of business and not evidenced by a noteto finance insurance premiums of any Credit Party or Subsidiary;
(h) 7.1.8. Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of creditperformance and surety, bank guaranteesstay, bankers’ acceptancesappeal and performance bonds, warehouse receipts or similar instruments issued or created, or relating to obligations or liability incurred, in each case in the ordinary course of business, including to conduct business, in respect of workers compensation claims, health, disability or other employee benefits or property, casualty casualty, liability or liability unemployment insurance or self-insurance insurance, other social security Laws or other Indebtedness regulations or to comply 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 Laws, in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset; provided that any business;
7.1.9. Capitalized Lease Obligations and other purchase money 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 principal amount at any time not to exceed $10,000,000, incurred 200,000 in the ordinary course of business not more than 180 days before or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assettwelve-month period;
(j) 7.1.10. 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 netting services and overdraft protections in connection with deposit accounts 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 2 contracts
Sources: Loan Agreement (Banzai International, Inc.), Loan Agreement (7GC & Co. Holdings Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Restricted Subsidiary of the Borrower);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment or financing plans for Indebtedness of the payment of insurance policy premiumsBorrower and the Restricted Subsidiaries pursuant to Permitted Swap Agreements;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Restricted Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such agreementPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, or (ii) any Mortgage Indebtedness incurred to 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) unsecured Indebtedness of a the Borrower or any Subsidiary Loan Party owing to any other Loan Party and/or (the “Subordinated Intercompany Debt”), provided, that such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Subsidiary or Controlled JV SubsidiaryPerson other than a Loan Party, and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; provided provided, further, that any such Indebtedness of a Loan Party to a Subsidiary or Controlled JV Subsidiary that is not a Loan Party for borrowed money shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar current obligations to a trade creditor incurred obligations, in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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, each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business 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;
(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 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 workers compensation claims, health, disability credit 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 claimspurchase 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 (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by 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 Subsidiary or 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 JV Subsidiary 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 not applied to prepay the Loans, (iv) no such secured junior Indebtedness shall provide for a Loan Party in final maturity date, scheduled amortization or any other scheduled repayment, mandatory redemption or sinking fund obligation prior to the ordinary course Maturity Date, (v) the incurrence of business not more than 180 days before such senior secured junior Indebtedness is permitted by the Revolving Credit Facility, and (vi) no Default or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade Event of Default then exists or improvement of a fixed or capital asset incurred would result therefrom;
(k) Guarantees (i) by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement Loan Party of such fixed or capital asset; provided that any Indebtedness of the Borrower or any Subsidiary Loan Party expressly permitted to be incurred under this Section 7.02(i)(i) shall be without recourse to any Loan Parties and 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 an aggregate amount at each case, incurred or assumed in connection with the disposition of any time not to exceed $10,000,000business, 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 business or with respect to trade payables and (y) the aggregate amount available to be drawn under all such Letters of Credit shall not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement exceed $100.0 million.
(n) Indebtedness consisting of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetPermitted Junior Debt;
(jo) Guarantees of Indebtedness in respect of Swap Contracts designed Unrestricted Subsidiaries and other Persons that are not Loan Parties or Restricted Subsidiaries 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 thereofextent that Investments are permitted under Section 6.04(g);
(kp) 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 ERF Program Revolving Credit Agreement and Indebtedness pursuant to any Secured Swap Agreements (as defined in an 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 exceed $100,000,000 (or such other increased amount incurrence, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenants, as may be approved by computed as of the Required Lenders)date of the incurrence of such Indebtedness;
(ls) without duplication of any other Indebtedness, Indebtedness incurred under the SMLP Holdings Credit Agreement; provided that such Indebtedness is subject at all premiums times to the Intercreditor Agreement; and
(t) all premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in paragraphs (ma) through (is) 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-Outsabove.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Summit Midstream Partners, LP), Purchase Agreement (Summit Midstream Partners, LP)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $2,000,000 shall be set forth on Schedule 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 Loan Party shall be subordinated 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 Agent 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 Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade replacement or improvement of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiaryimprovement, in order an aggregate principal amount that immediately after giving effect to finance such acquisitionthe incurrence thereof, constructiontogether with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), repairwould 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, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement so long as immediately after giving effect to the incurrence of such fixed or capital assetadditional 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 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 of the ERF Program 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 time not to exceed $100,000,000 (or such other increased amount as may be approved by the Required Lenders)Permitted Refinancing Indebtedness in respect thereof;
(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[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 Property-Level another Subsidiary that is not a Subsidiary Loan Party, and (iv) by the Borrower of Indebtedness of Subsidiaries to the extent consisting of Guarantees that do are not provide any greater recourse to the applicable Subsidiary Loan Party than the Mortgage Recourse Carve-Outs; provided that such Guarantees are entered into Parties incurred for working capital purposes in the ordinary course of business and 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 (ii) other than Section 6.04(v)); provided, that Guarantees by Controlled JV Subsidiaries the Borrower or Subsidiaries any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that do not constitute is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan Parties in respect of Obligations to at least the same extent as such underlying Indebtedness otherwise permitted hereunderis subordinated;
(n) Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants arising from agreements of the Loan Parties and/or 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 their respective its Subsidiaries and Controlled JV Subsidiaries 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; and;
(oi) 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 under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower 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 Property-Level Subsidiary shall create, incur, assume or suffer to exist obligor in respect of any such Indebtedness that is recourse 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 Loan PartyPermitted 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 than Mortgage Recourse CarveIndebtedness 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-Outs.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. CreateDirectly or indirectly create, incur, assume assume, guarantee, become liable, contingently or suffer to exist otherwise, with respect to, or otherwise become responsible for payment of ("incur") any Indebtedness other than (including, without limitation, Acquired Indebtedness), except the following:following (collectively, the "Permitted Indebtedness"):
(a) Indebtedness incurred under this Agreement, the Loans other Loan Documents and Obligationseach Other Credit Agreement, in an aggregate amount not to exceed $500,000,000;
(b) Mortgage intercompany Indebtedness as of owed to any Subsidiary provided that such Indebtedness shall be subordinated to 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 (i) any 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 finance, or assumed in connection with, an acquisition or Investment Obligations 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms manner reasonably satisfactory to the Administrative Agent;
(i) Indebtedness existing on the Closing Date and listed on Schedule B and (ii) Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness with respect to capital leases, (ii) purchase money Indebtedness and (iii) Refinancing Indebtedness incurred in respect of the foregoing;
(e) Indebtedness consisting of financing of insurance premiums in the ordinary course of business;
(f) cash management obligations and other Indebtedness in respect of Banking Servicesendorsements for collection or deposit, netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts; provided that such Indebtedness is extinguished within ten (10) Business Days after its incurrence;
(g) trade payables Indebtedness consisting of (i) take-or-pay obligations contained in utility supply arrangements and similar current obligations to a trade creditor (ii) customary indemnification obligations, in each case, incurred in the ordinary course of business and not evidenced by a notein connection with debt for money borrowed;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts guaranties or similar instruments issued or createdin support of obligations in respect of workers' compensation, unemployment insurance and other types of social security, or relating to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return of money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money or liability incurredcapital leases);
(i) Indebtedness arising from agreements providing for indemnification, adjustment of purchase or acquisition price, earn-out or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business or assets (including Equity Interests);
(j) Indebtedness representing deferred compensation to directors, officers, employees, members of management and consultants in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 in respect of bankers' acceptances supporting trade payables, warehouse receipts or similar facilities entered into in 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)ordinary course of business;
(l) without duplication of any other to the extent constituting Indebtedness, investments in repurchase agreements constituting Cash Equivalents;
(m) Indebtedness incurred under customary "bad acts" guarantees, environmental guarantees and similar agreements; and
(n) to the extent constituting Indebtedness, all premiums (if any), interest, fees, expenses, charges and additional or contingent interest on Indebtedness described in clauses (including post-petition a) through (m) above; provided that, notwithstanding the foregoing, if no Event of Default shall have occurred and be continuing at the time of or as a consequence of the incurrence of any such Indebtedness, Borrower may incur Indebtedness (including, without limitation, Acquired Indebtedness), in each case if on the date of the incurrence of such Indebtedness, after giving effect to the incurrence thereof, the Fixed Charge Coverage Ratio is equal to or greater than 1.50 to 1.00. For purposes of this Section 5.01, accrued interest and payment in kind interest)or dividends, accretion of accreted value, accretion or amortization accrual of original issue discount, feesthe payment of interest in the form of additional Indebtedness or the payment of dividends in the form of additional capital stock, expenses and charges with respect to or the reclassification of obligations as Indebtedness because of a change in GAAP will not be treated as the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
(m) (i) Guarantees by a Loan Party incurrence of Indebtedness. The amount of Indebtedness of Property-Level Subsidiaries to outstanding at any date will be (a) 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 accreted value of Indebtedness otherwise issued with original issue discount and, (b) the principal amount, or liquidation preference, of any other Indebtedness. The maximum amount of 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-OutsBorrower may incur will not be deemed violated because of fluctuations in currency exchange rates.
Appears in 2 contracts
Sources: Credit Agreement (Northstar Realty Finance Corp.), Facility Agreement (Northstar Realty Finance Corp.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $2,000,000 shall be set forth on Schedule 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, 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) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary of the Borrower that is not a Loan Party or any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business not more than 180 days before or after consistent with past practice or industry practices;
(e) Indebtedness of the acquisitionBorrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any other Subsidiary; provided, that (i) Indebtedness of any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 is not a Subsidiary Loan Party in an aggregate amount at any time not owing to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after 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 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.be subject to
Appears in 2 contracts
Sources: Incremental Assumption Agreement (PlayAGS, Inc.), Incremental Assumption Agreement (AP Gaming Holdco, Inc.)
Indebtedness. CreateIncur, incurcreate, assume assume, become or suffer be liable in any manner with respect to, or permit to exist exist, any Indebtedness Indebtedness, other than the followingthan:
(a) the Loans and Obligations;
(b) 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 Revolving Loans in an aggregate principal amount thereof, and at any Permitted Refinancings thereoftime outstanding not to exceed $12,000,000 solely to the extent the Revolving Loans are subject to the Intercreditor Agreement;
(c) Monthly payment, installment or financing plans for Indebtedness existing on the payment date of insurance policy premiumsthis Agreement and described on Schedule 3.01 of the Disclosure Schedule;
(d) Indebtedness arising from (i) incurred or assumed for the purpose of financing all or any agreement providing for indemnification, adjustment part of purchase price or similar obligations the cost of acquiring any fixed asset (including contingent earn-out obligations) incurred through Capitalized Leases), in connection with an aggregate principal amount at 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 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, time outstanding not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofgreater than $100,000;
(e) intercompany Indebtedness of a Loan Party resulting from inter-company loans solely between (i) the Borrower and any Wholly-Owned Domestic Subsidiary Guarantor and (ii) Wholly-Owned Domestic Subsidiary Guarantors, in each case to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiarythe extent such Indebtedness is permitted by, and Indebtedness of 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 subject to, the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative AgentIntercompany Subordination Agreement;
(f) Indebtedness in respect of Banking ServicesGuarantees to the extent permitted pursuant to Section 6.03;
(g) trade payables and similar current obligations Seller Subordinated Debt in an aggregate principal amount at any time outstanding not to a trade creditor incurred in exceed $10,000,000 solely to the ordinary course of business and not evidenced by a noteextent 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 by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of creditnetting services, bank guaranteesoverdraft protection, bankers’ acceptances, warehouse receipts or similar instruments issued or created, or relating to obligations or liability incurredand other like services, in each case, incurred in the ordinary course Ordinary Course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsBusiness;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 Ordinary Course of business not more than 180 days before Business under performance, surety, statutory or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetappeal 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 respect excess of Swap Contracts designed the amount of the unpaid cost of, and shall be incurred only to hedge against defer the Borrower’s or any Subsidiary’s exposure to interest ratescost of, foreign exchange rates or commodities pricing risks such insurance for the year in which such Indebtedness is incurred in the ordinary course of business and not for speculative purposes and guarantees thereofsuch Indebtedness is outstanding only during such year;
(k) Indebtedness incurred under in the ERF Program 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 at any time not to exceed $100,000,000 (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 such other increased amount as may be approved by the Required Lenders)cash management or related services are paid in full on a monthly basis;
(l) without duplication Indebtedness comprising Investments permitted under Section 6.06;
(m) accrual 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, feesor the payment of interest in kind, expenses and charges with respect to in each case, on Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries that otherwise constitutes Indebtedness permitted hereunderunder this Section 6.01;
(mn) 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) 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 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 foreign exchange rates and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do such Swap Contract does not constitute Loan Parties in respect of Indebtedness otherwise permitted hereundercontain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(no) Indebtedness representing deferred compensation Sponsor Subordinated Debt in an aggregate principal amount at any time outstanding not to current or former directors, officers, employees, members of management, managers, and consultants of exceed $470,000 solely to the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries in extent the ordinary course of businessSponsor Subordinated Debt is subject to the Sponsor Debt Subordination Agreement; and
(op) Indebtedness incurred unsecured Indebtedness, of a type not described above, not to exceed $250,000 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 aggregate at any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outstime outstanding.
Appears in 2 contracts
Sources: Credit Agreement (LIVE VENTURES Inc), Credit Agreement (LIVE VENTURES Inc)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans Obligations and ObligationsIndebtedness of any Loan Party under the Loan Documents;
(b) 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[reserved];
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued for the benefit of) any Person providing workers’ compensation, securing unemployment insurance and other social security laws or created, or relating to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claimsregulation, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect similar obligations to reimbursement-type obligations regarding workers compensation claimsthe Borrower or any Subsidiary Guarantor;
(id) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary of the Borrower that is not a Loan Party to any Subsidiary Guarantor and of any Subsidiary Guarantor to the Borrower or any other Subsidiary Guarantor;
(e) Indebtedness in respect of bids, trade contracts (other than for debt for borrowed money), leases (other than Capital Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, performance, performance and completion and return of money bonds, government contracts, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business not more than 180 days before (including Indebtedness in respect of letters of credit, bank guarantees or after similar instruments in lieu of such items to support the acquisitionissuance thereof);
(f) Indebtedness in respect of netting services, constructionoverdraft protection and similar arrangements, repairin each case, replacementin connection with cash management and deposit accounts;
(g) Capital Lease Obligations and purchase money Indebtedness (including any industrial revenue bond, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset industrial development bond and similar financings) incurred by the Borrower or any Subsidiary Guarantor prior to or Controlled JV Subsidiarywithin two hundred seventy (270) days after the acquisition, lease, repair or improvement of the respective asset in order to finance such acquisition, construction, repair, replacement, lease, expansionrepair or improvement, developmentand any Permitted Refinancing Indebtedness in respect thereof, installationin an aggregate outstanding principal amount that at the time of, relocationand after giving effect to, renewalthe 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, maintenancehowever, upgrade 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 improvement (ii) by the Borrower or any Loan Party of such fixed or capital assetany 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 incurred under this described in Section 7.02(i)(i6.01(h) shall be without recourse 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 any Loan Parties 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 Loan Party Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(l) Indebtedness supported by a Letter of Credit issued under (and as defined in) the ABL DIP Credit Agreement, in an aggregate a principal amount at not in excess of the stated amount of such Letter of Credit;
(m) Indebtedness incurred by the Borrower and any time not Subsidiary Guarantor representing deferred compensation to exceed $10,000,000directors, officers, employees, members of management and consultants of Holdings, any Parent Entity, the Borrower or any Subsidiary Guarantor in the ordinary course of business, 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 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 than for Liens securing debt for borrowed money) permitted under Section 6.02;
(p) Indebtedness incurred in the ordinary course of business not more than 180 days before or after in respect of obligations of 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 Guarantor to pay the deferred purchase price of goods or Controlled JV Subsidiary, services or progress payments in order to finance connection with such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetgoods and services;
(jq) 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 unfunded pension fund and other employee benefit plan obligations and liabilities incurred in the ordinary course of business and not for speculative purposes and guarantees thereofto the extent that they are permitted to remain unfunded under Applicable Law;
(kr) 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 premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to additional or contingent interest on Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
described in paragraphs (ma) through (iq) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries to the extent consisting of Guarantees that do not provide above. Notwithstanding 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-Outsthe 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. CreateThe Borrower will not, and will not permit any other Group Member to, incur, create, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and or other Secured Obligations;
(b) Mortgage Indebtedness as of the Group Members existing on the date hereof and listed set forth on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and 9.02 as well as any Permitted Refinancings Refinancing Indebtedness in respect thereof;
(c) Monthly payment, installment purchase money Indebtedness or financing plans for Capital Lease Obligations not to exceed $30,000,000 in the payment of insurance policy premiumsaggregate at any one time outstanding;
(d) unsecured Indebtedness arising from (i) any agreement providing for indemnificationassociated with worker’s compensation claims, adjustment bonds or surety obligations required by Governmental Requirements or by third parties in the ordinary course of purchase price or similar obligations (including contingent earn-out obligations) incurred business 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 agreementoperation of, or (ii) any Mortgage Indebtedness incurred to financeprovision for the abandonment and remediation of, 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) Oil and any Permitted Refinancings thereofGas 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 Borrower 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 to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; provided that (B) any such Indebtedness of owed by either the Borrower or a Loan Party to a Subsidiary or Controlled JV Subsidiary that is not a Loan Party Guarantor shall be contractually subordinated in right of payment to the prior repayment in full of the Secured Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect endorsements of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar negotiable instruments issued or created, or relating to obligations or liability incurred, for collection in the ordinary course of business, including ;
(g) any guarantee of any other Indebtedness permitted to be incurred hereunder;
(h) unsecured Indebtedness in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness Swap Agreements entered into in compliance with respect to reimbursement-type obligations regarding workers compensation claimsSection 9.17;
(i) Indebtedness (including Capitalized Lease Obligations) incurred by of the Borrower in respect of Permitted Unsecured Debt and any Permitted Refinancing Indebtedness of such Indebtedness provided, that (i) any Subsidiary or Consolidated JV Subsidiary such Indebtedness does not exceed $500,000,000 of the Borrower that is not a Loan Party principal in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or aggregate outstanding at any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 time and (ii) giving pro forma effect to such Indebtedness and the repayment of any Loan Party 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 an aggregate amount at any time compliance with Section 9.01(a) and (B) the Availability is equal to or greater than 15%; and
(j) other Indebtedness not to exceed $10,000,000, incurred 15,000,000 in the ordinary course of business not more than 180 days before or after 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 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 one 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-Outsoutstanding.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Diversified Energy Co PLC), Revolving Credit Agreement (Diversified Energy Co PLC)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (x) Indebtedness (other than as described in Section 6.01(b) below) existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is owed to any person other than 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 Obligations;
(by) 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 (i) any 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 Refinancing Indebtedness incurred to financeRefinance such Indebtedness; provided, or assumed in connection with, an acquisition or Investment in a Hotel Property that any Indebtedness outstanding pursuant to this clause (or part of a Hotel Propertya) 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of which is owed by a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment 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 BGI or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes;
(d) Indebtedness owed to (including obligations in full 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 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 BGI to any Subsidiary and of any Subsidiary to 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 BGI and 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 Banking Servicesperformance 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) trade payables and Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar current obligations to a trade creditor 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 not evidenced by a notebusiness;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 2 contracts
Sources: Amendment No. 2 (Barnes Group Inc), Credit Agreement (Barnes Group Inc)
Indebtedness. CreateNo Loan Party shall, nor shall it permit any of its Subsidiaries or the LS&Co. Trust to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness owed by the Loans U.S. Borrower or any of its Subsidiaries to the U.S. Borrower or any of its Subsidiaries; provided that (x) any Indebtedness owed by a Loan Party to a Subsidiary that is not a Loan Party shall be subordinated to the 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 a Canadian Loan Party shall be subordinated to the Obligations;
(b) Mortgage Indebtedness as of the U.S. Loan Parties issued in a Capital Markets Transaction, provided such Indebtedness is unsecured and such Indebtedness does not have a stated maturity date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase required principal payments earlier than six months after the principal amount thereof, and any Permitted Refinancings thereofMaturity Date;
(c) Monthly payment, installment or financing plans for Guarantees of the payment U.S. Borrower under the LS&Co. Trust Agreement; provided that the investment activities of insurance policy premiumsthe LS&Co. Trust are in compliance with the Investment Policies;
(d) Guarantees of (i) the U.S. Loan Parties in respect of the obligations of Loan Parties, (ii) the Canadian Loan Parties in respect of the obligations of Canadian Loan Parties and (iii) Foreign Subsidiaries that are not Loan Parties in respect of the obligations of Foreign Subsidiaries that are not Loan Parties, in each case, arising under or in connection with Banking Services in the ordinary course of business;
(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 time outstanding;
(h) Indebtedness of the U.S. Borrower or any Subsidiary 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, in which case, the Minimum Intercompany Transaction Requirement need not be met), 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 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(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 (i) agreements of the U.S. Borrower or any agreement 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 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 (including contingent earn-out obligations) and other unsecured Guarantees of the U.S. Borrower incurred in connection with any Investment Permitted Foreign Receivables Transaction 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofForeign Inventory Transaction;
(en) Indebtedness of a Loan Party the U.S. Borrower to any other Loan Party and/or of its Subsidiaries or of any Subsidiary or Controlled JV Subsidiary, and Indebtedness of a Subsidiary or Controlled JV Subsidiary its Subsidiaries 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 its Subsidiaries in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor connection with transactions incurred in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 value thereof and any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetrelated servicing fees;
(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 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligations(other than in the case of any existing letters of credit to be replaced with Letters of Credit issued hereunder) set forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Company or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment or financing plans for Indebtedness of the payment of insurance policy premiumsCompany and the Subsidiaries pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Company or any Subsidiary, pursuant to reimbursement or indemnification obligations to such agreementPerson, or provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, such obligations are reimbursed not later than thirty (ii30) any Mortgage Indebtedness incurred to 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 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of a the Company or any Subsidiary to the extent permitted by Section 6.04, provided that Indebtedness of any Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 (the “Subordinated Intercompany Debt”) shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds and completion or performance guarantees and similar current obligations to a trade creditor incurred obligations, in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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, each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business 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;
(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 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 workers compensation claims, health, disability credit 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 claimspurchase 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 (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by 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 Consolidated JV 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 Borrower 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 not more than 180 days before on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(a), (k) or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement (s); provided that Guarantees by any Loan Party under this Section 6.01(m) of any other Indebtedness of a fixed Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the Obligations on terms consistent with those used, or capital asset incurred by to be used, for Subordinated Intercompany Debt;
(n) Indebtedness arising from agreements of the Borrower Company or any Subsidiary providing for indemnification, adjustment of purchase price, earn outs or Controlled JV similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, in order to finance 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, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;
(o) Indebtedness in connection with Permitted Receivables Financings; provided that any Indebtedness incurred under this the proceeds thereof are applied in accordance with Section 7.02(i)(i2.11(c) shall be without recourse to any Loan Parties and the extent they constitute Net Proceeds;
(iip) any Loan Party in letters of credit or bank guarantees (other than Letters of Credit issued pursuant to Section 2.05) having an aggregate face amount at 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 time not to exceed $10,000,000, refinancings thereof) for working capital purposes incurred in the ordinary course of business not more than 180 days before or after 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 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)U.S.$30.0 million outstanding at any time;
(lt) without duplication 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 other Indebtedness, time;
(u) [Intentionally Omitted]; and
(v) all premiums premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in paragraphs (ma) through (it) 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-Outsabove.
Appears in 2 contracts
Sources: Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc)
Indebtedness. CreateThe Borrower will not, and will not permit any Restricted Subsidiary to, incur, create, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Effective Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(b) Mortgage Indebtedness as of created hereunder and under the date hereof and listed on Schedule 5.07(b)other Loan Documents, including any renewals, amendments, modifications Indebtedness created under Section 2.20 or extensions thereof that do not increase the principal amount thereof, and any Permitted Refinancings thereof2.21 hereof;
(c) Monthly payment, installment Indebtedness of the Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to the Borrower or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from any other Restricted Subsidiary; provided that (i) Indebtedness of any agreement providing for indemnification, adjustment of purchase price Restricted Subsidiary that is not a Subsidiary Loan Party owing to the Borrower or similar obligations (including contingent earn-out obligations) incurred in connection with any Investment or Disposition permitted hereunder Subsidiary Loan Party shall be subject to Section 6.04 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party that is owing to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 Restricted Subsidiary that is not a Loan Party shall be contractually subordinated in right of payment to evidenced by the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative AgentIntercompany Note;
(fd) Indebtedness of the Borrower and the Restricted Subsidiaries pursuant to Swap Agreements to the extent that, at the time entered into, such Swap Agreements were (i) in the ordinary course of business to hedge or mitigate risks to which the Borrower or any Restricted Subsidiary is exposed in the conduct of its business or the management of its liabilities (including currency risks) or (ii) in order to effectively cap, collar or exchange interest rates (from fixed to floating rates, from one floating rate to another floating rate or otherwise) with respect to any interest-bearing liability or investment of the Borrower or any Restricted Subsidiary;
(e) Obligations in respect of Cash Management Services and other Indebtedness in respect of Banking Services;
(g) trade payables netting services, automatic clearing house arrangements, employees’ credit or purchase cards, overdraft protections and similar current obligations to a trade creditor arrangements, in each case, incurred in the ordinary course of business and not evidenced by a notebusiness;
(hi) Indebtedness incurred by a Loan Party or any of its the Borrower and the Restricted Subsidiaries or Controlled JV Subsidiaries owed to (including obligations in respect of letters of credit, credit or bank guarantees, bankers’ banker’s acceptances, warehouse receipts or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Restricted Subsidiary, pursuant to reimbursement or indemnification obligations to such Person, in each case, provided in the ordinary course of business or (ii) Indebtedness supported by Letters of Credit or other letters of credit under similar facilities in an amount not to exceed the stated amount of such Letters of Credit or stated amount of such other letters of credit under such similar facilities;
(g) Indebtedness of the Borrower and the Restricted Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, including those incurred to secure health, safety, insurance and environmental obligations of the Borrower and its Restricted Subsidiaries, in each case, incurred in the ordinary course of business and not in connection with respect to reimbursement-type obligations regarding workers compensation claimsthe borrowing of money;
(i) Indebtedness of any Person that becomes a Restricted Subsidiary (including Capitalized Lease Obligationsor of any Person not previously a Restricted Subsidiary that is merged or consolidated with or into the Borrower or a Restricted Subsidiary) incurred after the Effective Date, or Indebtedness of any Person that is assumed by the Borrower or any Restricted Subsidiary in connection with an acquisition of assets by the Borrower or such Restricted Subsidiary, (iii) Indebtedness incurred, issued or otherwise obtained to finance a Permitted Business Acquisition or similar Investment permitted by Section 6.04 and (iii) any Subsidiary Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that (A) other than Indebtedness referred to in clause (ii) above, such Indebtedness is not incurred, issued or Consolidated JV Subsidiary obtained in contemplation of such acquisition, (B) after giving effect to such acquisition and any other Pro Forma Adjustment and the assumption or incurrence, issuance or obtaining of any Indebtedness in connection therewith, on a Pro Forma Basis, the Borrower would be in compliance with the Financial Covenant for the Test Period most recently ended on or prior to the date or consummation of such acquisition and (C) the aggregate principal amount of such Indebtedness that, at the time of and after giving effect to, the assumption, incurrence, issuance or other obtaining thereof (together with other Indebtedness then outstanding under this clause (h), and under clause (p) of this Section 6.01, in each case in respect of which the primary obligor or a guarantor is a Restricted Subsidiary that is not a Loan Party, shall not exceed, at such times, the Non-Loan Party in Indebtedness Amount;
(i) (i) Capitalized Lease Obligations, mortgage financings and purchase money Indebtedness incurred, issued or otherwise obtained by the ordinary course of business not more than 180 Borrower or any Restricted Subsidiary prior to or within 270 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade lease or improvement of a fixed or capital the respective asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, developmentlease or improvement, installation, relocation, renewal, maintenance, upgrade or 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 Permitted Refinancing Indebtedness in an aggregate amount at any time not to exceed $10,000,000respect thereof, incurred in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset and (iii) Capitalized Lease Obligations incurred by a Loan Party, the Borrower or any Subsidiary or Controlled JV Subsidiaryin respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, collectively, in order an aggregate principal amount that at the time of, and after giving Pro Forma Effect to, the incurrence, issuance or other obtaining thereof (together with other Indebtedness then outstanding under this clause (i) would not exceed, on such date, the greater of (x) $40,000,000 and (y) 25.0% of Consolidated Total Assets of the Borrower at the end of the Test Period most recently ended on or prior to finance such acquisitiontime of incurrence, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade issuance or improvement of such fixed or capital assetobtaining;
(j) Indebtedness in respect arising from agreements of Swap Contracts designed to hedge against the Borrower’s Borrower or any Subsidiary’s exposure Restricted Subsidiary providing for indemnification, adjustment of purchase price (including earn outs) or similar obligations, in each case, incurred or assumed in connection with the Disposition of any business, assets or Equity Interests or the making of Investments, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Equity Interests for the purpose of financing such acquisition, in each case, to interest rates, foreign exchange rates the extent such obligation or commodities pricing risks incurred in the ordinary course of business and not for speculative purposes and guarantees thereoftransaction is permitted by this Agreement;
(k) Indebtedness incurred under consisting of (x) the ERF Program financing of insurance premiums or (y) take-or-pay obligations, termination fees or similar obligations contained in an aggregate amount at any time not to exceed $100,000,000 (supply or such other increased amount as may be approved by manufacturing arrangements, in each case, in the Required Lenders)ordinary course of business;
(l) without duplication of any other to the extent constituting Indebtedness, all premiums premium (if any), interest (including post-petition interest and payment in kind capitalized interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges additional or contingent interest on Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01;
(i) Indebtedness representing deferred compensation or stock based or similar compensation to employees, consultants or independent contractors of the Borrower (or any Parent Entity thereof) and the Restricted Subsidiaries incurred in the ordinary course of business; and (ii) Indebtedness consisting of obligations of the Borrower (or any Parent Entity thereof) or the Restricted Subsidiaries under deferred compensation to their employees, consultants or independent contractors or other similar arrangements incurred by such Persons in connection with Permitted Business Acquisitions or any other Investment permitted under Section 6.04;
(n) [reserved];
(o) Indebtedness in respect of (i) Permitted Additional Debt, the Net Cash Proceeds from which are applied to prepay the Term Loans in the manner set forth in Section 2.11(b), (ii) other Permitted Additional Debt (provided that at the time of incurrence, issuance or other obtaining thereof and after giving Pro Forma Effect thereto and any other transaction consummated in connection therewith, assuming that all commitments thereunder were fully drawn, (X) the aggregate principal amount of all such Indebtedness incurred, issued or otherwise obtained under this clause (o)(ii) plus (Y) the aggregate amount of any Incremental Term Loans (other than those Incremental Term Loans the Net Cash Proceeds of which were used on the date of incurrence thereof to prepay Term Loans in accordance with the procedures set forth in Section 2.11(b)), Incremental Revolving Commitment Increases and Incremental Revolving Commitments (other than Incremental Revolving Commitments the effectiveness of which was accompanied by a simultaneous equivalent permanent reduction of existing Revolving Commitments in accordance with Section 2.11(g)(ii)) that in each case have been incurred or provided pursuant to Section 2.20) shall not exceed $100,000,000; provided that, in the case of this clause (ii), no Event of Default shall have occurred and be continuing at the time of the incurrence, issuance or obtaining of any such Indebtedness or after giving effect thereto and the Borrower shall be in compliance on a Pro Forma Basis with the Financial Covenant and (iii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(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, issuance or obtaining of, such Indebtedness (together with other Indebtedness then outstanding under this clause (p)) shall not exceed the greater of (x) $50,000,000 and (y) if the Consolidated Secured Leverage Ratio would be less than 3.00 to 1.00 on a Pro Forma Basis for the Test Period most recently ended on or prior to such date of issuance, incurrence or obtaining, 30.0 % of Consolidated Total Assets of the Borrower at the end of such Test Period; provided that the aggregate principal amount of such Indebtedness that, at the time of, and after giving Pro Forma Effect to, the assumption, incurrence, issuance or other obtaining thereof (together with other Indebtedness then outstanding under clause (h) or (p) of this Section 6.01), in each case in respect of which the primary obligor or a guarantor is a Restricted Subsidiary that is not a Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunderParty, shall not exceed, at such time, the Non-Loan Party Indebtedness Amount;
(mq) Guarantees by the Borrower or any Restricted Subsidiary of any Indebtedness of the Borrower or any Restricted Subsidiary expressly permitted to be incurred under this Agreement; provided that, notwithstanding anything to the contrary in this Section 6.01, (i) Guarantees by the Borrower and the Subsidiary Loan Parties shall not Guarantee the Indebtedness of any Restricted Subsidiary that is not a Loan Party unless such Guarantee is permitted under Section 6.04, (ii) any Guarantees by the Borrower or any Subsidiary Loan Party under this paragraph (q) of any other Indebtedness of Property-Level Subsidiaries a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to the extent consisting of Guarantees that do Loan Document Obligations on terms not provide any greater recourse less favorable to the applicable Loan Party Lenders than the Mortgage Recourse Carve-Outssubordination terms of such other Indebtedness and (iii) no Restricted Subsidiary shall Guarantee any Indebtedness incurred under Section 6.01(o) unless such Subsidiary is also a Subsidiary Loan Party; and
(r) Guarantees incurred in the ordinary course of business in respect of obligations to suppliers, customers, franchisees, lessors, licensees, sublicensees or distribution partners;
(i) unsecured Indebtedness in respect of obligations of the Borrower or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided that such Guarantees obligations are entered into incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the borrowing of money and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties unsecured Indebtedness 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 intercompany obligations of the Loan Parties and/or Borrower or any Restricted Subsidiary in respect of their respective Subsidiaries and Controlled JV Subsidiaries accounts payable incurred in the ordinary course of business; and
(o) Indebtedness incurred connection with goods sold or services rendered in the ordinary course of business under performanceand not in connection with the borrowing of money;
(t) unsecured Indebtedness consisting of promissory notes issued by any Loan Party to current or former officers, suretymanagers, statutory consultants, directors and appeal bonds. In furtherance employees (or their respective spouses, former spouses, successors, executors, administrators, heirs, legatees or distributees) to finance the retirement, acquisition, repurchase, purchase or redemption of Equity Interests of Holdings (or any Parent Entity thereof to the extent such Parent Entity uses the proceeds to finance the retirement, acquisition, repurchase, purchase or redemption (directly or indirectly) of its Equity Interests) or the Equity Interests of the foregoingBorrower, no Property-Level in each case to the extent permitted by Section 6.06; and
(u) Indebtedness of Restricted Subsidiaries that are not Subsidiary Loan Parties; provided that at the time of the assumption, incurrence, issuance or other obtaining thereof and after giving Pro Forma Effect thereto, on the aggregate outstanding principal amount of Indebtedness outstanding in reliance on this clause (u) shall createnot exceed, incuron such date, assume $30,000,000. For purposes of determining compliance with this Section 6.01, in the event that an item of Indebtedness meets the criteria of more than one of the categories of Indebtedness described in clauses (a) through (u) above, the Borrower shall, in its sole discretion, classify and reclassify or suffer later divide, classify or reclassify such item of Indebtedness (or any portion thereof) and will only be required to exist any include the amount and type of such Indebtedness in one or more of the above clauses; provided that is recourse all Indebtedness outstanding under the Loan Documents will be deemed to any Loan Partyhave been incurred in reliance only on the exception in clause of Section 6.01(b). The accrual of interest, other than Mortgage Recourse Carve-Outsthe 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.
Appears in 2 contracts
Sources: Credit Agreement (Blue Buffalo Pet Products, Inc.), Credit Agreement (Blue Buffalo Pet Products, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Amendment Two Effective Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under 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 thereofother Loan Documents;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Hedging Agreements permitted by Section 6.11;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Subsidiary, pursuant to reimbursement or other indemnification obligations to such person, in each case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers 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 Loan Party or (iii) any Subsidiary other than a Subsidiary Loan Party to the Borrower or any other Subsidiary; provided that (A) Indebtedness pursuant to clauses (i) and (ii) of this Section 6.01(e) shall be unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent 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, including (x) those incurred to secure health, safety and environmental obligations in the ordinary course of business, so long as the underlying obligations with respect 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 or obligations under Cash Management Agreements, in each case 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 (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by 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) 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 after the acquisitionCapital Lease Obligations, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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 such the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade lease or improvement of such fixed 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 capital asset; provided that improved (and any Indebtedness incurred related property and assets subject to a common financing program of the type permitted under this Section 7.02(i)(i6.01(i)) shall be without recourse to any Loan Parties in connection with the incurrence of such Indebtedness and proceeds, improvements and replacements thereof, (ii) any Loan Party in an aggregate amount at any time shall not to exceed $10,000,000, incurred in the ordinary course of business be secured by a Lien on Collateral and (iii) shall constitute not more than 180 days before or after 100% of 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 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 consideration paid with respect to Indebtedness such property or improvement (and any related property subject to a common financing program of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries type permitted hereunderunder this Section 6.01(i));
(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 2 contracts
Sources: Credit Agreement (Verso Corp), Credit Agreement (Verso Corp)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the following:Indebtedness, except
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 to the Disclosure Letter and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to a Swap Agreement not entered into for the payment of insurance policy premiumsspeculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Subsidiary, pursuant to reimbursement or other indemnification obligations to such Person; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers workers’ compensation claims, such 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 that (i) Indebtedness 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 Subsidiary Loan Party that is evidenced by a note or other instrument shall be subordinated to the Obligations;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations;
(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 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 (including Capitalized Lease Obligationsh), 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 by to Refinance such Indebtedness
(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 after the acquisitionCapital Lease Obligations, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 270 days after the acquisition, lease or improvement of the applicable asset in order to finance such acquisitionacquisition or improvement, constructionand any Permitted Refinancing Indebtedness in respect thereof, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 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 exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement date of such fixed or capital assetincurrence for which financial statements have been delivered pursuant to Section 5.04, determined on a Pro Forma Basis;
(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[reserved];
(k) other Indebtedness incurred under of the ERF Program 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 exceed $100,000,000 (or the date of such other increased amount as may be approved by the Required Lenders)incurrence for which financial statements have been delivered pursuant to Section 5.04, at any time;
(l) without duplication 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, 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 a Person that is subordinated to other Indebtedness of such Person shall be expressly subordinated to such other Indebtedness to the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereundersame extent;
(m) (i) 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 disposition of any business or assets of the Borrower or a Subsidiary, other than Guarantees by a Loan Party of Indebtedness incurred by any Person acquiring all or any portion of Property-Level Subsidiaries to such business, assets or a Subsidiary for the extent consisting purpose of Guarantees that do not provide any greater recourse to the applicable Loan Party than the Mortgage Recourse Carve-Outs; provided that financing 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 hereunderacquisition;
(n) Indebtedness representing deferred compensation letters of credit or bank guarantees (other than Letters of Credit issued pursuant to current or former directorsSection 2.05) having an aggregate face amount not in excess of $25.0 million at any time outstanding, officersprovided that if the Revolving Facility Commitments are reduced pursuant to Section 2.08, employees, members of management, managers, and consultants such amount shall be increased by the amount of the Loan Parties and/or 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 their respective Subsidiaries and Controlled JV Subsidiaries 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; and;
(oq) 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 ordinary course form of business under performance, surety, statutory first lien notes secured on a pari passu basis with the Loans and appeal bonds. In furtherance 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 foregoingmost recent Test Period and as of the date of such incurrence, no Property-Level Subsidiary 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 create, incur, assume or suffer have entered into an intercreditor agreement with the Administrative Agent on terms reasonably satisfactory to exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.the Administrative Agent;
Appears in 2 contracts
Sources: Revolving Credit Agreement (Nuance Communications, Inc.), Revolving Credit Agreement (Nuance Communications, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01) and (ii) any Permitted Refinancing Indebtedness in respect thereof (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(bi) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under the date hereof other Loan Documents and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and (ii) any Permitted Refinancings Refinancing Indebtedness in respect thereof;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
self-insurance and Indebtedness and other obligations owed to (g) trade payables and similar current including 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Subsidiary, pursuant to reimbursement or other Indebtedness indemnification obligations to such person, in each case in the ordinary course of business or consistent with respect to reimbursement-type obligations regarding workers compensation claimspast practice or industry norm;
(ie) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary 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 Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated 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 Agent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business not more than 180 days before or after consistent with past practice or industry norm, including those incurred to secure health, safety and environmental obligations in the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade ordinary course of business or improvement consistent with past practice or industry norm;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a fixed check, draft or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, similar instrument drawn against insufficient funds in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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, each case incurred in the ordinary course of business not more than 180 days before or after 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 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 other cash management services incurred in the ordinary course of business and not for speculative purposes and guarantees thereofor consistent with past practice or industry norm;
(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 2 contracts
Sources: Credit Agreement (United Parks & Resorts Inc.), Credit Agreement (SeaWorld Entertainment, Inc.)
Indebtedness. CreateNo Loan Party shall, nor shall it permit any of its Subsidiaries or the LS&Co. Trust to, directly or indirectly, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness owed by the Loans U.S. Borrower or any of its Subsidiaries to the U.S. Borrower or any of its Subsidiaries; provided that (x) any Indebtedness owed by a Loan Party to a Subsidiary that is not a Loan Party shall be subordinated to the 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 a Canadian Loan Party shall be subordinated to the Obligations;
(b) Mortgage Indebtedness as of the U.S. Loan Parties issued in a Capital Markets Transaction, provided such Indebtedness is unsecured and such Indebtedness does not have a stated maturity date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase required principal payments earlier than 91 days after the principal amount thereof, and any Permitted Refinancings thereofMaturity Date;
(c) Monthly payment, installment or financing plans for Guarantees of the payment U.S. Borrower under the LS&Co. Trust Agreement; provided that the investment activities of insurance policy premiumsthe LS&Co. Trust are in compliance with the Investment Policies;
(d) Guarantees of (i) the U.S. Loan Parties in respect of the obligations of Loan Parties, (ii) the Canadian Loan Parties in respect of the obligations of Canadian Loan Parties and (iii) Foreign Subsidiaries that are not Loan Parties in respect of the obligations of Foreign Subsidiaries that are not Loan Parties, in each case, arising under or in connection with Banking Services in the ordinary course of business;
(e) Indebtedness of the U.S. Borrower and its Subsidiaries outstanding on the Second Amendment 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 time outstanding;
(h) Indebtedness of the U.S. Borrower or any Subsidiary 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, in which case, the Minimum Intercompany Transaction Requirement need not be met), 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 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(j) and Section 6.01(k) (including all such Indebtedness existing on the Second Amendment 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 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 (i) agreements of the U.S. Borrower or any agreement 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 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 (including contingent earn-out obligations) and other unsecured Guarantees of the U.S. Borrower incurred in connection with any Investment Permitted Foreign Receivables Transaction 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofForeign Inventory Transaction;
(en) Indebtedness of a Loan Party the U.S. Borrower to any other Loan Party and/or of its Subsidiaries or of any Subsidiary or Controlled JV Subsidiary, and Indebtedness of a Subsidiary or Controlled JV Subsidiary its Subsidiaries 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 its Subsidiaries in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor connection with transactions incurred in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 value thereof and any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetrelated servicing fees;
(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 2 contracts
Sources: Credit Agreement (Levi Strauss & Co), Credit Agreement (Levi Strauss & Co)
Indebtedness. CreateNeither the Parent, any Borrower, nor any other Credit Party shall, without the prior written consent of the Required Lenders, create, incur, assume assume, guarantee or suffer be or remain liable, contingently or otherwise with respect to exist any Indebtedness other than the following:
Recourse Indebtedness, except: (a) the Loans and Obligations;
Indebtedness under this Agreement; (b) Mortgage Indebtedness as of the date hereof and listed on Schedule 5.07(b)Parent, Parent Borrower, or Holdings under any renewalsHedging Obligations permitted under this Agreement, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and any Permitted Refinancings thereof;
(c) Monthly paymentIndebtedness of the Parent or Parent Borrower whose recourse is solely for so-called “bad-boy” acts in respect to Indebtedness secured by Real Property of its Subsidiaries, installment including without limitation, (i) failure to account for a tenant’s security deposits, if any, for rent or any other payment collected by a borrower from a tenant under the lease, all in accordance with the provisions of any applicable loan documents, (ii) fraud or a material misrepresentation made by a Borrower or Subsidiary thereof, or the holders of beneficial or ownership interests in such Subsidiary, in connection with the financing plans for evidenced by the payment applicable loan documents; (iii) any attempt by a Borrower or any Guarantor or Subsidiary thereof to divert or otherwise cause to be diverted any amounts payable to the applicable lender in accordance with the applicable loan documents; (iv) the misappropriation or misapplication of any insurance policy premiums;
proceeds or condemnation awards relating to any Real Property securing such Indebtedness; (v) voluntary or involuntary bankruptcy by a Borrower or any Guarantor or Subsidiary thereof; (vi) any environmental matter(s) affecting any Real Property securing such Indebtedness; (vii) failure to deliver statements, schedules, reports, or books and records in accordance with the provisions of any applicable loan documents; (viii) failure to pay any deferred amounts in accordance with the provisions of any applicable loan documents; (ix) any material waste of any Real Property securing such Indebtedness; (x) the failure to comply with any single purpose entity requirements in accordance with the provisions of any applicable loan documents; and (xi) the occurrence of any transfer of any interest in violation of the provisions of any applicable loan documents; (d) Indebtedness arising from (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor operating expenses incurred in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(ie) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 Parent and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
(m) (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries to Parent Borrower under the extent consisting of Guarantees that do not provide any greater recourse to Bridge Loans in compliance with the applicable Loan Party than the Mortgage Recourse Carve-Outsfinancial covenants in Section 5.02; provided that such Guarantees are entered into Indebtedness shall not be secured by or have as credit support any direct or indirect interest in the ordinary course of business and Borrowers, the Borrowing Base Properties or Borrowing Base Property Owners or any Collateral; (iif) Guarantees by Controlled JV Subsidiaries or Subsidiaries at any time prior to the Collateral Termination Date but only to the extent that do not constitute Loan Parties in respect of no Bridge Loans are then outstanding, Recourse 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 Parent (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 Partyeach case, other than Mortgage the Obligations) in a principal amount permitted under Section 5.02(i); (g) from and after the Collateral Termination Date, Secured Recourse Carve-OutsIndebtedness of the Parent so long as the Credit Parties remain in compliance with the financial covenants in Section 5.02; and (h) from and after the Collateral Termination Date, other Unsecured Indebtedness of the Credit Parties so long as the Credit Parties remain in compliance with the financial covenants in Section 5.02.
Appears in 2 contracts
Sources: Increase Agreement, Joinder, and Second Amendment to Credit Agreement (Vinebrook Homes Trust, Inc.), Revolving Credit Agreement (Vinebrook Homes Trust, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $2,000,000 shall be set forth on Schedule 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 Loan Party shall be subordinated 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 Agent 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 Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, replacementreplacement or improvement, leasein an aggregate principal amount that immediately after giving effect to the incurrence thereof, expansiontogether with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(i)(x), developmentwould 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, installation, relocation, renewal, maintenance, upgrade or improvement so long as immediately after giving effect to the incurrence of such fixed 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 capital asset; provided 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 Section 7.02(i)(i) shall be without recourse to any Loan Parties and Agreement, (ii) by the Borrower or any Subsidiary Loan Party in an aggregate amount at of Indebtedness otherwise permitted hereunder of any time Subsidiary that is not a Subsidiary Loan Party to exceed $10,000,000the 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 not more 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 180 days before or after Section 6.04(v)); provided, that Guarantees by 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 order Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement other Indebtedness of such fixed or capital assetperson shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(jn) 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 Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business and not for speculative purposes and guarantees thereofor consistent with past practice or industry practices;
(kp) other Indebtedness incurred under or Disqualified Stock of the ERF Program Borrower or any Subsidiaries in an aggregate outstanding principal amount at any time or liquidation preference not to exceed $100,000,000 (or such other increased amount as may be approved greater than 100.0% of the net cash proceeds received by the Required LendersBorrower 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;
(lq) without duplication Indebtedness consisting 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 the financing 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 insurance premiums or (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties take-or-pay obligations contained in respect of Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current or former directorssupply arrangements, officersin each case, 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;
(oi) 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 under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower 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 Property-Level Subsidiary shall create, incur, assume or suffer to exist obligor in respect of any such Indebtedness that is recourse 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 Loan PartyPermitted 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 Mortgage Recourse Carve-Outs.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. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness existing or committed or anticipated in the Loans and Obligations;
future to be outstanding on the Signing Date (bprovided, that any Indebtedness incurred pursuant to this clause (a)(i) Mortgage Indebtedness as in an aggregate principal amount in excess of $35,000,000 or anticipated on the date hereof and listed Signing Date to be outstanding in the future, shall be set forth on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, 6.01) and any Permitted Refinancings thereof;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from (i) any 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) Indebtedness existing or committed, or anticipated in the future to be outstanding, on the Spinoff Date (provided that any Mortgage Indebtedness incurred pursuant to finance, or assumed this clause (a)(ii) shall be permitted only if the Administrative Agent consents thereto (in connection with, an acquisition or Investment in a Hotel Property (or part of a Hotel Propertyits reasonable discretion) or the direct or indirect Equity Interests of any Person that owns a Hotel Property, not and Schedule 6.01 is updated accordingly to exceed 70% of the fair market value (determined as of the date of entry into the agreement for include such acquisition or Investment) of such Hotel Property (or part of a Hotel PropertyIndebtedness) and any Permitted Refinancings thereof;
Refinancing Indebtedness incurred to Refinance Indebtedness incurred pursuant to this clause (ea); provided, that any Indebtedness outstanding pursuant to this clause (a) Indebtedness of which is owed by a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentcustomary terms;
(fb) Indebtedness in respect of Banking Servicescreated 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;
(gc) trade payables and similar current obligations Indebtedness of Parent or any Subsidiary pursuant to a trade creditor incurred in the ordinary course of business and not evidenced by a noteHedging Agreements entered into for non-speculative purposes;
(hd) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries owed to (including obligations in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Parent or self-insurance 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 Parent to any Subsidiary and of any Subsidiary to 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 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 customary 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 Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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, (including 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 (i) Parent or any Subsidiary prior to or Consolidated JV Subsidiary of the Borrower that is not a Loan Party in the ordinary course of business not more than 180 within 360 days before or after the acquisition, lease, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade replacement or improvement of a fixed the respective property (real or capital asset incurred by personal, and whether through the Borrower direct purchase of property or the Equity Interest of any Subsidiary or Controlled JV Subsidiary, person owning such property) permitted under this Agreement in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade replacement or improvement of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiaryimprovement, in order an aggregate principal amount that immediately after giving effect to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement the incurrence of such fixed 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 capital assetassumed, and (y) any Permitted Refinancing Indebtedness in respect thereof;
(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[reserved];
(k) (x) other Indebtedness incurred under the ERF Program of Parent or any Subsidiary, in an aggregate principal amount at 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 time other Indebtedness outstanding pursuant to this Section 6.01(k), would not to exceed the greater of $100,000,000 750,000,000 and 7.5% of Consolidated Total Assets when incurred, created or assumed and (or such other increased amount as may be approved by the Required Lenders)y) any Permitted Refinancing Indebtedness in respect thereof;
(l) without duplication of the Senior Notes and 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 Permitted Refinancing 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 hereunderthereof;
(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 2 contracts
Sources: Credit Agreement (Johnson Controls Inc), Credit Agreement (Adient LTD)
Indebtedness. CreateEach Loan Party will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or assume, suffer to exist exist, guarantee, or otherwise become or remain, directly or indirectly, liable with respect to any Indebtedness other than the following:Indebtedness, except as follows (collectively, “Permitted Indebtedness”):
(a) Indebtedness in respect of the Loans and Obligations (other than Bank Product Obligations);
(b) Mortgage Indebtedness as of the date hereof and listed described on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, 6.1 and any Permitted Refinancings Refinancing Indebtedness in respect thereof;
(c) Monthly paymentIndebtedness of any Loan Party or any Restricted Subsidiary under Floor Plan Financings or for Capital Lease Obligations or Purchase Money Obligations; provided that, installment or financing plans immediately after giving effect to any such incurrence, the aggregate principal amount of Indebtedness incurred under this clause (c) and then outstanding does not exceed the greater of (x) $375,000,000 and (y) 50% of Consolidated EBITDA for the payment of insurance policy premiumsmost recently ended Test Period;
(d) Indebtedness arising from of any Loan Party or any Restricted Subsidiary incurred in respect of (i) any agreement providing for indemnificationperformance bonds, 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 completion guarantees, letters of credit, bank guaranties, surety bonds, performance bonds banker’s acceptances or other similar bonds, instruments securing or obligations, in each case in the performance pursuant to such agreementordinary course of business, or and (ii) any Mortgage Indebtedness incurred to 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 obligations under Hedge Agreements entered into for bona fide hedging purposes of any Person that owns a Hotel Property, Loan Party and not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofspeculative purposes;
(e) 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 Services (including, for the avoidance of doubt, any Bank Product Obligations);
(f) Indebtedness consisting of accommodation guarantees for the benefit of trade creditors of any Loan Party or any Restricted Subsidiary;
(g) Indebtedness of any Loan Party to another Loan Party;
(h) Indebtedness of (i) any Subsidiary which is not a Loan Party to another Subsidiary which is not a Loan Party, (ii) any Subsidiary which is not a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; (provided that the aggregate amount of Indebtedness incurred under this clause (h)(ii), when taken together with the aggregate amount of Investments made under clause (c)(iii) of the definition of Permitted Investments (as reduced by any return of capital in respect of any such Indebtedness Investment), shall not exceed the greater of a Loan Party to a Subsidiary (x) $75,000,000 and (y) 10% of Consolidated EBITDA for the most recently ended Test Period in the aggregate outstanding at any time), or Controlled JV (iii) any Subsidiary that is not a Loan Party to any Loan Party so long as the Payment Conditions shall be contractually subordinated in right of payment have been satisfied immediately before and immediately after giving effect to the prior repayment in full incurrence of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimssuch Indebtedness;
(i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) of any Loan Party or any Restricted Subsidiary to any Loan Party or any other Restricted Subsidiary arising pursuant to Permitted Investments and other Permitted Intercompany Activities; provided that, in the case of Indebtedness of any Loan Party owing to 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 so long as such Indebtedness is unsecured or any Subsidiary or Controlled JV Subsidiary, in order subject to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetthe Intercompany Subordination Agreement;
(ji) Indebtedness in respect of Swap Contracts designed to hedge against arising from 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 honoring by a Loan Party bank or other financial institution 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 a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business and (ii) Guarantees by Controlled JV Subsidiaries customer deposits and advance payments received in the ordinary course of business from customers for goods or Subsidiaries that do not constitute Loan Parties in respect of Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current services purchased 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 rented in the ordinary course of business;
(k) unsecured Indebtedness arising from agreements of any Loan Party or any Restricted Subsidiary providing for guarantees, indemnification, obligations in respect of earnouts or other purchase price adjustments or holdback of purchase price or similar obligations, in each case, incurred or assumed in connection with any acquisition or disposition of any business, assets or Subsidiary permitted hereunder, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing the acquisition thereof;
(l) Indebtedness of any Loan Party or any of its Restricted Subsidiaries in respect of Sale Leasebacks permitted under Section 6.5;
(m) Guarantees by any Loan Party or any Restricted Subsidiary of Indebtedness permitted to be incurred by a Loan Party or any Restricted Subsidiary hereunder; andprovided that if the Indebtedness being Guaranteed is subordinated to or pari passu with any of the Obligations, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness Guaranteed;
(n) Guarantees or other Indebtedness in respect of Indebtedness of (i) a Person in which a Loan Party has a minority interest or (ii) joint ventures or similar arrangements; provided that at the time of incurrence of any Indebtedness pursuant to this clause (n), the aggregate principal amount of all Guarantees and other Indebtedness incurred under this clause (n) and then outstanding does not exceed the greater of (x) $125,000,000 and (y) 30% of Consolidated EBITDA for the most recently ended Test Period;
(o) Subordinated Indebtedness; provided that both immediately before and on a Pro Forma Basis immediately after the incurrence of such Indebtedness, Borrowers are in compliance with the financial covenant set forth in Section 7 (regardless of whether a Covenant Testing Period is in effect or such covenant is otherwise effective);
(p) Indebtedness representing deferred compensation, severance and health and welfare retirement benefits to current and former employees of Parent Borrower and its Subsidiaries incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance business;
(q) Indebtedness consisting of the foregoingfinancing of insurance premiums or take-or-pay obligations contained in supply arrangements, no Property-Level Subsidiary shall createin each case in the ordinary course of business;
(r) Indebtedness arising in connection with the endorsement of instruments or other payment items for deposit,
(s) Indebtedness incurred in respect of netting services, incuroverdraft protection, assume and other like services, in each case, incurred in the ordinary course of business,
(t) accrual of interest, accretion or suffer to exist any amortization of original issue discount, or the payment of interest in kind, in each case, on Indebtedness that otherwise constitutes Permitted Indebtedness,
(u) Management Guarantees not exceeding $25,000,000 in the aggregate outstanding at any time;
(v) [reserved];
(w) Indebtedness of any Restricted Subsidiary that is not a Loan Party; provided that (i) such Indebtedness is not guaranteed by any Loan Party, (ii) the holder of such Indebtedness does not have, directly or indirectly, any recourse to any Loan Party, whether by reason of representations or warranties, agreement of the parties, operation of law or otherwise, (iii) such Indebtedness is not secured by any assets other than Mortgage Recourse Carve-Outs.assets of such Restricted Subsidiary, and (iv) the aggregate principal amount of such Indebtedness, when taken together with the aggregate amount of Indebtedness of Restricted Subsidiaries that are not Loan Parties incurred under clause (x)(i)(A) or (B) below, outstanding at any time shall not exceed the greater of (x) $250,000,000 and (y) 35% of Consolidated EBITDA for the Test Period most recently ended;
(x) (i) Indebtedness of any Loan Party or any Restricted Subsidiary, in addition to that described in clauses (a) through (w) above; provided that as of the date of incurring such Indebtedness and after giving effect thereto (or, at Parent Borrower’s option, on the date of the initial borrowing of such Indebtedness or entry into the definitive agreement providing the commitment to fund such Indebtedness after giving pro forma effect to the incurrence of the entire committed amount of such Indebtedness, in which case such amount may thereafter be borrowed and reborrowed, in whole or in part, from time to time, without further compliance with this proviso):
(A) in the case of unsecured Indebtedness or Indebtedness secured by assets not constituting Collateral, the Interest Coverage Ratio shall be at least 2.00 to 1.00 (but in the case of Indebtedness of a Restricted Subsidiary that is not a Loan Party, subject to the limit set forth in Section 6.1(w) above);
(B) in the case of Indebtedness secured by the Collateral, the Secured Leverage Ratio shall be equal to or less than 4:00 to 1.00 (but in the case of Indebtedness of a Restricted Subsidiary that is not a Loan Party, subject to the limit set forth in Section 6.1(w) above); provided that for purposes of calculating the Secured Leverage Ratio under this clause (B) for purposes of determining whether such Indebtedness may be incurred, any cash proceeds of such Indebtedness then being incurred shall not be netted from the numerator in the determination of the Secured Leverage Ratio; or
(C) the aggregate principal amount of such Indebtedness does not exceed at any time the greater of (x) $250,000,000 and (y) 35% of Consolidated EBITDA for the Test Period most recently ended; and
Appears in 2 contracts
Sources: Credit Agreement (EquipmentShare.com Inc), Credit Agreement (EquipmentShare.com Inc)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness (other than Indebtedness of Loan Parties to Subsidiaries that are not Loan Parties) and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrowers or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly paymentIndebtedness of Holdings, installment the Borrowers or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings, either Borrower or self-insurance 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 Borrowers to Holdings or any Subsidiary, of Holdings to the Borrowers or any Subsidiary, and of any Subsidiary to Holdings, the 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 Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated 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 Agent 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 Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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 (i) Holdings or any Subsidiary prior to or Consolidated JV Subsidiary of the Borrower that is not a Loan Party in the ordinary course of business not more than 180 within 270 days before or after the acquisition, lease, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade replacement or improvement of a fixed the respective property (real or capital asset incurred by personal, and whether through the Borrower direct purchase of property or the Equity Interest of any Subsidiary or Controlled JV Subsidiary, person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, repair, replacementreplacement or improvement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement in an aggregate principal amount that immediately after giving effect to the incurrence of such fixed 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 capital asset; provided 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 Section 7.02(i)(i) shall be without recourse to any Loan Parties and Agreement, (ii) by Holdings, any Borrower or any other Loan Party in an aggregate amount at of Indebtedness otherwise permitted hereunder of any time Subsidiary that is not a Subsidiary Loan Party to exceed $10,000,000the 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 not more 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 180 days before Section 6.04(v)); provided, that Guarantees by either Borrower or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement any other Loan Party under this Section 6.01(m) of any other Indebtedness of a fixed or capital asset incurred by a person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Loan PartyObligations 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 Controlled JV Subsidiaryacquisition price or similar obligations (including earn-outs), in order to finance such acquisitioneach case, constructionincurred or assumed in connection with the Transactions, repairany acquisition permitted by this Agreement, replacementany Permitted Business Acquisition, leaseother Investments or the disposition of any business, expansion, development, installation, relocation, renewal, maintenance, upgrade assets or improvement of such fixed or capital asseta Subsidiary not prohibited by this Agreement;
(jo) Indebtedness in respect of Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred 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 speculative purposes 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 guarantees 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;
(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
(ou) 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 performancecustomer financing lines of credit entered into in the ordinary course of business;
(bb) Indebtedness of, suretyincurred on behalf of, statutory 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 appeal bonds. In furtherance the use of proceeds thereof, together with the foregoingaggregate principal amount of any other Indebtedness outstanding pursuant to this Section 6.01(bb), no Property-Level 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 shall createto current or former officers, incurdirectors and employees, assume their respective estates, spouses or suffer former spouses to exist finance the purchase or redemption of Equity Interests of Holdings or any Parent Entity permitted by Section 6.06;
(dd) Indebtedness that is recourse to consisting of obligations of Holdings or any Loan Party, Subsidiary under deferred compensation or other than Mortgage Recourse Carve-Outs.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. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and Obligations;
(b) 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 (i) Indebtedness existing or committed on the Second Amendment Effective Date (provided, that any agreement providing for indemnification, adjustment Indebtedness that is in excess 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property$15.0 million individually is set forth on Schedule 6.01) and any Permitted Refinancings thereof;
Refinancing Indebtedness incurred to Refinance such Indebtedness (eor 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 Second Amendment Effective Date and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided 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 and other than obligations or liabilities under any Operations Services Agreement, (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 (to the extent required by such Security Documents) and (y) any Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment Loan Obligations under this Agreement on subordination terms as described in full of the Obligations Global Intercompany Note or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(fb) Indebtedness in respect of Banking Servicescreated hereunder (including pursuant to Section 2.21) and under the other Loan Documents and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(gc) trade payables and similar current obligations Indebtedness of the Borrower or any Subsidiary pursuant to a trade creditor incurred in the ordinary course of business and Swap Agreements not evidenced by a noteentered into for speculative purposes;
(hd) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries owed to (including obligations in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 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 and other than obligations and liabilities under any Operations Services Agreement, (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 (to the extent required by such Security Documents) 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 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 Agent 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 respect past practice or industry practices, including those incurred to reimbursement-type secure health, safety and environmental obligations regarding workers compensation claimsin 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 the ordinary course of business;
(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 otherwise incurred or assumed by the Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests or any other permitted Investment (in each case, including Capitalized Lease Obligationsa Permitted Business Acquisition), where such Investment, 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, the Total Secured Leverage Ratio on a Pro Forma Basis immediately after giving effect to such Investment, acquisition, merger, consolidation or amalgamation, the assumption or incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than, at the Borrower’s election, (I) 3.50 to 1.00 or (II) the Total Secured Leverage Ratio immediately prior to such acquisition, merger, consolidation or amalgamation, (C) in the case of any other such Indebtedness, the Fixed Charge Coverage Ratio on a Pro Forma Basis immediately after giving effect to such Investment, acquisition, merger, consolidation or amalgamation, the assumption or incurrence of such Indebtedness and the use of proceeds thereof and any related transactions is not 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 (D) the aggregate outstanding principal amount of Indebtedness incurred (but not assumed) by Subsidiaries that are not Loan Parties under this clause (h)(i), together with the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to Section 6.01(r)(i), Section 6.01(s) and Section 6.01(ee)(i), shall not exceed the greater of $200.0 million and 0.25 times 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 by in contemplation of such Investment, 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) 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 after the acquisition(i) Capital Lease Obligations, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, replacementreplacement or improvement, leasein an aggregate outstanding principal amount not to exceed the greater of $100.0 million and 0.115 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 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 $200.0 million and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and any time 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 exceed $10,000,000be 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 or other obligations of Subsidiaries that are not Subsidiary Loan Parties incurred for working capital purposes in the ordinary course of business not more than 180 days before or after the acquisitionon ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s); provided, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement that (x) Guarantees by any Loan Party under this Section 6.01(m) of any other Indebtedness of a fixed or capital asset incurred by a person that is subordinated to other Indebtedness of such person shall be subordinated to the Loan Party, 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 Controlled JV Subsidiaryacquisition price, deferred purchase price or similar obligations (including earn outs and retention payments), in order to finance such acquisitioneach case, constructionincurred or assumed in connection with the Transactions, repairthe Second Amendment Transactions and any Permitted Business Acquisition, replacementother Investments or the disposition of any business, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade assets or improvement of such fixed or capital asseta Subsidiary not prohibited by this Agreement;
(jo) Indebtedness in respect of Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business and not for speculative purposes and guarantees thereofor consistent with past practice or industry practice;
(kp) Indebtedness incurred under supported by a Letter of Credit, in a principal amount not in excess of the ERF Program in an aggregate stated amount at any time not to exceed $100,000,000 (or of such other increased amount as may be approved by the Required Lenders)Letter of Credit;
(lq) without duplication Indebtedness consisting 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 the financing 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 insurance premiums or (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties take-or-pay obligations contained in respect of Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current or former directorssupply arrangements, officersin each case, 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;
(oi) other Indebtedness of the Borrower or any Subsidiary 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, the Total Secured Leverage Ratio on a Pro Forma Basis is not greater than, at the Borrower’s election, (I) 3.50 to 1.00 or (II) if such Indebtedness is issued, incurred or assumed 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 (y) in the case of any other Indebtedness, the Fixed Charge Coverage Ratio on a Pro Forma Basis is not less than, at the Borrower’s election, (i) 2.00 to 1.00 or (ii) if such Indebtedness is issued, incurred or assumed 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)(i), together with the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to Section 6.01(h)(i), Section 6.01(s) and Section 6.01(ee)(i), shall not exceed the greater of $200.0 million and 0.25 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)(i) at such time shall not be netted for purposes of the calculation of the Total Secured Leverage Ratio and the Fixed Charge Coverage Ratio in respect of such incurrence, as applicable, (III) any Indebtedness for borrowed money issued or incurred (but not assumed) pursuant to Section 6.01(r)(i) shall be subject to the last paragraph of Section 6.01 and (IV) any U.S. dollar denominated Indebtedness for borrowed money issued or incurred (but not assumed) pursuant to Section 6.01(r)(i)(x) that is a broadly syndicated term “B” loan secured by a Lien on the Collateral that is pari passu in right of security with the Term B-1 Loans shall be subject to the requirements of Section 2.21(b)(viii) to the same extent as if such Indebtedness was incurred in the form of Other Term Loans; provided that this clause (IV) shall not apply to any Indebtedness issued or incurred pursuant to this Section 6.01(r) that (A) is issued or incurred after the six-month anniversary of the Second Amendment Effective Date or (B) has an outside maturity date greater than two years after the Term B-1 Facility Maturity Date; and (ii) Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness of Subsidiaries that are not Subsidiary Loan Parties in an aggregate outstanding principal amount, together with the aggregate outstanding principal amount of Indebtedness incurred by Subsidiaries that are not Loan Parties pursuant to Section 6.01(h)(i), Section 6.01(r)(i) and Section 6.01(ee)(i), not to exceed the greater of $200.0 million and 0.25 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 under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, no Property-Level 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 shall createincurred in the ordinary course of business;
(v) Indebtedness in connection with Permitted Receivables Financings in an aggregate principal amount outstanding that, incurimmediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, assume would not exceed the greater of $25.0 million and 0.03 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period;
(w) Indebtedness of the Borrower and the Subsidiaries incurred under lines of credit or suffer 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 exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.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’ ordi
Appears in 2 contracts
Sources: Incremental Assumption Agreement No. 4 and Fifth Amendment to Credit Agreement (Playtika Holding Corp.), Credit Agreement (Playtika Holding Corp.)
Indebtedness. CreateThe Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to create, incur, assume or suffer otherwise become or remain liable with respect to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Secured Obligations (including any Additional Term Loans and Obligationsany Additional Revolving Loans);
(b) Mortgage Indebtedness 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 date hereof and listed Obligations of such Loan Party on Schedule 5.07(bterms that are reasonably acceptable to the Administrative Agent (including pursuant to an Intercompany Note), 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[reserved];
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with the Transactions, any Investment or 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 comprising guaranteesarising 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 any such agreement, or (ii) any Mortgage Indebtedness incurred to 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party the Borrower and/or any Restricted Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) Indebtedness (including Capitalized Lease Obligations) 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 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 hereunderletters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
(nf) Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Loan Parties Borrower and/or any Restricted Subsidiary in respect of their respective Subsidiaries Banking Services and/or otherwise in connection with Cash management and Controlled JV Subsidiaries Deposit Accounts, including Banking Services Obligations and incentive, supplier finance or similar programs;
(i) guaranties by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business; and
, (oii) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services and (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, 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 Property-Level Subsidiary shall createEvent of Default then exists, incurand
(vi) in the case of Refinancing Indebtedness constituting Replacement Debt, assume (A) such Indebtedness is pari passu or suffer junior in right of payment and secured by the Collateral on a pari passu or junior basis with respect to exist the remaining Obligations hereunder, or is unsecured; provided that any such Refinancing Indebtedness that is recourse 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 PartyParty 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, other than Mortgage Recourse Carve-Outs.it may no
Appears in 2 contracts
Sources: Credit Agreement (Definitive Healthcare Corp.), Credit Agreement (Definitive Healthcare Corp.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements permitted by Section 6.12;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, or (ii) any Mortgage in each case in the ordinary course of business; provided, that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers’ compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of a Loan Party the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary; provided, and that (i) Indebtedness of 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 Subsidiary Loan Party owing to the Loan Parties shall be contractually subject to Section 6.04(b) and (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 “Subordinated Intercompany Debt”) shall be subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Servicesperformance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) trade payables 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 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 current 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 (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 creditor incurred 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 evidenced by a notein connection with the borrowing of money or any Swap Agreements;
(hu) Indebtedness incurred by a Loan Party representing deferred compensation to employees of the Borrower or any of its Subsidiaries or Controlled 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, Subsidiary incurred in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(iv) Indebtedness in connection with Permitted Receivables Financings;
(including Capitalized Lease Obligationsw) incurred by (i) any Subsidiary or Consolidated JV Subsidiary Indebtedness of the Borrower that is and the Subsidiaries incurred under lines of credit or overdraft facilities (including, but not a Loan Party 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 business not more than 180 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 before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement during each fiscal year of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement the outstanding principal amount of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i) the Overdraft Line 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 after 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 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 Lenders10.0 million);
(lx) without duplication of any other Indebtedness, all premiums premium (if any), interest (including post-post petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in paragraphs (ma) through (iw) 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-Outsabove.
Appears in 2 contracts
Sources: Credit Agreement (Verso Paper Corp.), Credit Agreement (Verso Paper Corp.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) the Loans Existing Notes, (ii) [reserved] and Obligations(iii) other Indebtedness existing on the Closing Date and set forth on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary of the Borrower);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment or financing plans for Indebtedness of the payment of insurance policy premiumsBorrower and its Relevant Subsidiaries pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Relevant Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such agreement, or (ii) any Mortgage Indebtedness incurred to finance, or assumed Person in connection with, an acquisition or Investment in a Hotel Property (or part the ordinary course 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofbusiness;
(e) Indebtedness of a the Borrower or any Relevant Subsidiary owing to the Borrower or any Subsidiary of the Borrower to the extent permitted by Section 6.04, provided that Indebtedness of any Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 (the “Subordinated Intercompany Debt”) shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar current obligations to a trade creditor incurred obligations, in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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, each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business 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;
(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 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 workers compensation claims, health, disability credit 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 claimspurchase 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 (including Capitalized Lease Obligations) incurred by together with Indebtedness outstanding pursuant to this paragraph (h), paragraph (i) any Subsidiary or 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 JV Subsidiary Total Assets as of the Borrower that is not a Loan Party in end of the ordinary course fiscal quarter immediately prior to the date of business not more than 180 days before or after the such acquisition, constructionmerger, repairamalgamation or consolidation, replacementsuch assumption or such incurrence, leaseas applicable, expansionfor 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, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and purchase money Indebtedness incurred by the Borrower or any Relevant Subsidiary prior to or Controlled JV Subsidiarywithin 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, constructionlease or improvement, repairand any Permitted Refinancing Indebtedness in respect thereof, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 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 exceed $10,000,000be 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, 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 business not more than 180 days before or after 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 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 on ordinary course of business and not for speculative purposes and guarantees thereof;
(k) Indebtedness incurred under the ERF Program terms in an aggregate amount at any time not to exceed the greater of $100,000,000 (or such other increased amount as may be approved by the Required Lenders25.0 million and 0.5% of Consolidated Total Assets outstanding at any time);
(li) without duplication 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 other Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness, ; and
(r) all premiums premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges additional or contingent interest on obligations described in paragraphs (a) through (q) above. For purposes of determining compliance with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
(m) this Section 6.01, (i) Guarantees by a Loan Party in the event that an item of Indebtedness (or any portion thereof) meets the criteria of Property-Level Subsidiaries 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 extent consisting categories of Guarantees that do not provide any greater recourse to the applicable Loan Party than the Mortgage Recourse Carve-OutsIndebtedness permitted in this Section 6.01; provided that such Guarantees are entered into in the ordinary course of business and (ii) Guarantees by Controlled JV Subsidiaries at the time of incurrence, the Borrower or Subsidiaries that do not constitute Loan Parties a Relevant Subsidiary, as the case may be, in respect its sole discretion, may divide and classify an item of Indebtedness otherwise permitted hereunder;
(nor any portion thereof) Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants in more than one of the Loan Parties and/or any categories of their respective Subsidiaries and Controlled JV Subsidiaries Indebtedness permitted 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-Outsthis Section 6.01.
Appears in 2 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Equity Partners LP)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements permitted by Section 6.12;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, or (ii) any Mortgage in each case in the ordinary course of business; provided, that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers’ compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of a Loan Party the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary; provided, and that (i) Indebtedness of 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 Subsidiary Loan Party owing to the Loan Parties shall be contractually subject to Section 6.04(b) and (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 “Subordinated Intercompany Debt”) shall be subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Servicesperformance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) trade payables and Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar current obligations to a trade creditor incurred instrument drawn against insufficient funds in the ordinary course of business or other cash management services 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 not evidenced by a note(y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(hi) 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 a 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 its 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 Controlled JV Subsidiaries 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, bankers’ acceptances, 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 created(ii) take-or-pay obligations contained in supply arrangements, or relating to obligations or liability incurredin 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, including (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 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) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary to pay the deferred purchase price of goods or Controlled JV Subsidiaryservices or progress payments in connection with such goods and services; provided, in order to finance that such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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, obligations are incurred in the ordinary course of business not more than 180 connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 60 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement incurrence of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;
(jthe related obligations) 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 thereofin connection with the borrowing of money or any Swap Agreements;
(ku) Indebtedness representing deferred compensation to employees of the Borrower or any Subsidiary incurred under in the ERF Program ordinary course of business;
(v) Indebtedness in an aggregate amount at any time not to exceed $100,000,000 (or such other increased amount as may be approved by connection with Permitted Receivables Financings; provided that the Required Lendersproceeds thereof are applied in accordance with Section 2.11(b);
(lw) without duplication Indebtedness of any other 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 premiums premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in paragraphs (ma) through (iw) 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-Outsabove.
Appears in 2 contracts
Sources: Credit Agreement (Verso Paper Holdings LLC), Credit Agreement (Verso Sartell LLC)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Subsidiary, pursuant to reimbursement or other indemnification obligations to such person; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers 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 (i) Indebtedness 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 Subsidiary Loan Party shall be subordinated to the Obligations;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(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 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 (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by 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) any Subsidiary or of this Section 6.01), would not exceed the greater of $50.0 million and 4.25% of Consolidated JV Subsidiary Total Assets as of the Borrower that is not a Loan Party in end of the ordinary course fiscal quarter immediately prior to the date of business not more than 180 days before or after the such acquisition, constructionmerger or consolidation, repairsuch assumption or such incurrence, replacementas applicable, leasefor which financial statements have been delivered pursuant to Section 5.04, expansiondetermined on a Pro Forma Basis;
(i) Capital Lease Obligations, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 270 days after the acquisition, lease or improvement of the applicable asset permitted under this Agreement in order to finance such acquisitionacquisition or improvement, constructionand any Permitted Refinancing Indebtedness in respect thereof, repairin an aggregate principal amount that at the time of, replacementand after giving effect to, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement 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 fixed 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 capital assetany 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 Indebtedness incurred Subsidiary Loan Party under this Section 7.02(i)(i6.01(l) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be without recourse expressly subordinated to such other Indebtedness to the same extent;
(m) Indebtedness arising from agreements of the Borrower or any Loan Parties and Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each 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;
(iin) any Loan Party in 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 to exceed $10,000,000in 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, incurred in each case, in the ordinary course of business not more than 180 days before or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetbusiness;
(jq) 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 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;
(ks) 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 premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in paragraphs (ma) through (iq) 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 businessabove; and
(ot) Cash Management Obligations and other Indebtedness incurred in the ordinary course respect of business under performancenetting services, suretyoverdraft protection and similar arrangements, statutory in each case, in connection with cash management 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-Outsdeposit accounts.
Appears in 2 contracts
Sources: Credit Agreement (Nuance Communications, Inc.), Credit Agreement (Nuance Communications, Inc.)
Indebtedness. CreateIncur, incurcreate or assume any Indebtedness, assume or suffer to exist any Indebtedness other than the followingexcept:
(a) (i) Indebtedness existing or committed on the Loans Closing Date (provided that any such item of Indebtedness that is individually in excess of $20,000,000 shall be set forth on Schedule 6.01) and Obligations(ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage (i) Indebtedness as of created hereunder (including pursuant to Section 2.21, 2.22 or 2.23) and under the date hereof other Loan Documents and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and (ii) any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 among the Borrower and any of its Subsidiaries; provided, that Indebtedness of any Loan Party to any Subsidiary that is not a Loan Party shall be subordinated in right of payment to any Indebtedness otherwise incurred pursuant to this Section 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 Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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 Capitalized Lease Obligationsa 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 by to Refinance any such Indebtedness;
(i) any Subsidiary (i) Finance Lease Obligations, purchase money 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, replacementreplacement 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, expansionconstruction, developmentrepair, installation, relocation, renewal, maintenance, upgrade replacement or improvement of such fixed or capital asset; provided that 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 7.02(i)(i6.01(k) may be reallocated to increase clause (i) of the “Incremental Amount”, which shall be without recourse deemed to any Loan Parties 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 Loan Party Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of the Borrower or any Subsidiary (“Contribution Debt”) in an aggregate outstanding principal amount at 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 time 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 exceed $10,000,000be 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 more 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 180 days before 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 after the consolidation) or an Investment, where such acquisition, constructionmerger, repairconsolidation or Investment is not prohibited by this Agreement, replacementthe Net First Lien Leverage Ratio as of the most recently ended Test Period prior thereto; provided, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement that (x) the aggregate principal amount of a fixed or capital asset Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan PartyParty shall not exceed, Borrower or 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 or Controlled JV SubsidiaryLoan Parties, in order 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 finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement this clause (q)(i) shall be subject to the last paragraph of such fixed or capital asset;
this Section 6.01 and (jii) any Permitted Refinancing 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;
(kr) (i) Indebtedness incurred under of the ERF Program Borrower and its Subsidiaries secured by Liens on Collateral that are Junior Liens in an aggregate outstanding principal amount at any time outstanding not to exceed $100,000,000 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 increased than a Subsidiary Loan Party shall not exceed, when taken together with the aggregate principal amount as may be approved by the Required Lenders);
(l) without duplication of any other Indebtedness, all premiums (if anyIndebtedness outstanding pursuant to Section 6.01(q)(i), interest (including post-petition interest and payment in kind interestthis Section 6.01(r)(i), accretion or amortization 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 original issue discount, fees, expenses (x) $200,000,000 and charges with respect (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 Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
this clause (mr)(i) (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries shall be subject to the extent consisting last paragraph 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 this Section 6.01 and (ii) Guarantees by Controlled JV Subsidiaries or any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness of the Borrower and its Subsidiaries that do is unsecured or secured by non-Collateral assets in aggregate outstanding principal amount at any time outstanding not constitute 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 of Indebtedness otherwise permitted hereunderthereof;
(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
(ou) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower 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, no Property-Level officers, employees, consultants or independent contractors of the Borrower or any Subsidiary shall create(or, incurto the extent such work is done for the Borrower or the Subsidiaries, assume any direct or suffer to exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.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. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $1,000,000 shall be set forth on Schedule 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Subsidiary, pursuant to reimbursement or other Indebtedness indemnification obligations to such person, in each case in the ordinary course of business or consistent with respect to reimbursement-type obligations regarding workers compensation claimspast 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 (including Capitalized Lease Obligations) incurred by (i) of any Subsidiary or Consolidated JV that is not a Subsidiary of Loan Party owing to the Borrower 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 Loan Party shall be subordinated 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 Agent 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 not more than 180 days before or after consistent with past practice or industry practices, including those incurred to secure health, safety and environmental obligations in the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade ordinary course of business or improvement consistent with past practice or industry practices;
(g) Indebtedness arising from the honoring by a bank or other financial institution of a fixed check, draft or capital asset 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 Controlled JV Subsidiarywithin 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, replacementreplacement or improvement, leasein an aggregate principal amount that at the time of, expansionand after giving effect to, developmentthe incurrence thereof, installation, relocation, renewal, maintenance, upgrade or improvement together with the aggregate amount of such fixed or capital asset; provided that any other Indebtedness incurred under outstanding pursuant to this Section 7.02(i)(i) shall be without recourse to any Loan Parties 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 in an aggregate amount at of any time 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 exceed $10,000,000the 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 not more 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 180 days before or after Section 6.04(v)); provided, that Guarantees by 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 order Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement other Indebtedness of such fixed or capital assetperson shall be expressly subordinated to the Loan Obligations under this Agreement to at least the same extent as such underlying Indebtedness is subordinated;
(jn) 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 Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business and not for speculative purposes and guarantees thereofor consistent with past practice or industry practices;
(kp) Indebtedness incurred under to finance the ERF Program in an aggregate amount at any time not to exceed $100,000,000 acquisition or ownership of aircrafts and aircraft equipment (including airframes, engines, appliances, equipment, instruments or such other increased amount as may be approved by the Required Lendersrelated property), including (x) Capitalized Lease Obligations and (y) transactions through equipment trust certificates or enhanced equipment trust certificates structures;
(lq) without duplication Indebtedness consisting 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 the financing 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 insurance premiums or (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties take-or-pay obligations contained in respect of Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current or former directorssupply arrangements, officersin each case, 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;
(or) 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 performancedeferred 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, suretyincluding tender premiums) expenses, statutory defeasance costs, interest (including post-petition interest), fees, expenses, charges and appeal bondsadditional 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 furtherance of the foregoingaddition, no Property-Level Subsidiary shall create, incur, assume or suffer with respect to exist any Indebtedness that is recourse was permitted to be incurred hereunder on the date of such incurrence, any Loan Party, other than Mortgage Recourse Carve-OutsIncreased 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. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness created hereunder and under the Loans and Obligationsother Loan Documents;
(b) 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 thereofpursuant to Swap Agreements permitted by Section 6.11;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit 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, provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers workers’ compensation claims, such obligations are reimbursed not later than 60 days following such incurrence;
(d) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary (including pursuant to the Intercompany Note), provided that (i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) of any Subsidiary or Consolidated JV Subsidiary of the Borrower 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 Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall be subordinated to the Obligations pursuant to the subordination terms set forth in the Intercompany Note;
(e) Indebtedness in respect of bids, trade contracts (other than for debt for borrowed money), leases (other than Capital Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, performance, performance and completion and return of money bonds, government contracts, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business (including letters of credit, bank guarantees or similar instruments in lieu of such items to support the issuance thereof);
(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 cash 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 more than 180 days before created in contemplation of such event, the aggregate principal amount thereof at the time of such acquisition or after assumption together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, this paragraph (g) and the acquisitionRemaining 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, constructionmortgage financings and purchase money Indebtedness (including any industrial revenue bond, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset industrial development bond and similar financings) incurred by the Borrower or any Restricted Subsidiary prior to or Controlled JV Subsidiarywithin 270 days after the acquisition, lease, repair or improvement of the respective asset in order to finance such acquisition, construction, repair, replacement, lease, expansionrepair or improvement, developmentand any Permitted Refinancing Indebtedness in respect thereof, installationin an aggregate principal amount that at the time of, relocationand after giving effect to, renewalthe incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (g) of this Section 6.01, maintenancethis 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), upgrade (ii) by the Borrower or improvement 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 fixed Guarantees are permitted by Section 6.04(b), (j), (m), (o) or capital asset(q); provided that Guarantees by the Borrower or any Indebtedness incurred Subsidiary Loan Party under this Section 7.02(i)(i6.01(k) of any other Indebtedness of a person that is subordinated to the Obligations shall be without recourse 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 Borrower or any Loan Parties 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 Loan Party 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 time Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(r) letters of credit or bank guarantees (other than letters of credit issued pursuant to the First Lien Credit Agreement) having an aggregate face amount not to exceed $10,000,00017.25 million outstanding at any time;
(s) Indebtedness incurred by the Borrower and its Restricted Subsidiaries representing (i) deferred compensation to directors, incurred officers, employees, members of management and consultants of such person in the ordinary course of business not more than 180 days before or after (ii) deferred compensation or other similar arrangements in connection with 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 Transactions or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetPermitted Business Acquisition;
(jt) Indebtedness in respect consisting 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 promissory notes issued by the Required Lenders);
(l) without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest Borrower 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 its Restricted 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 management or consultants of the Loan Parties and/or any of such person (or their respective Subsidiaries and Controlled JV Subsidiaries 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 respect of letters of credit, bankers’ acceptances supporting trade payables, warehouse receipts or similar facilities entered into in the ordinary course of business; and
(ov) all premium (if any), interest (including post-petition interest), fees, expenses, charges and additional or contingent interest on Indebtedness incurred described 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-Outsparagraphs (a) through (u) above.
Appears in 2 contracts
Sources: Credit Agreement (Generac Holdings Inc.), Credit Agreement (Generac Holdings Inc.)
Indebtedness. CreateNeither the Borrowers nor the Subsidiary Guarantors shall directly or indirectly, create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness of any Loan Party under the Loans and ObligationsLoan Documents;
(b) Mortgage Indebtedness as of outstanding on the date hereof Closing Date and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, 7.03(b) and any Permitted Refinancings Refinancing thereof;
(c) Monthly paymentGuarantees by any Borrower or Subsidiary Guarantor in respect of Indebtedness of any Borrower or Subsidiary Guarantor otherwise permitted hereunder; provided that if the Indebtedness being guaranteed is subordinated to the Obligations, installment or financing plans for such Guarantee shall be subordinated to the payment Guarantee of insurance policy premiumsthe Obligations on terms at least as favorable to the Lenders as those contained in the subordination of such Indebtedness;
(d) Indebtedness arising from (i) of any agreement providing for indemnification, adjustment of purchase price Borrower or similar obligations (including contingent earn-out obligations) incurred in connection with Subsidiary Guarantor owing to any Investment Borrower 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 finance, or assumed in connection with, an acquisition or Investment in a Hotel Property Subsidiary Guarantor (or part issued or transferred to any Parent Company of a Hotel Property) or the direct or indirect Equity Interests of any Person that owns Loan Party which is substantially contemporaneously transferred to a Hotel Property, not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofLoan Party);
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 any Borrower’s or any SubsidiarySubsidiary Guarantor’s exposure to interest rates, foreign exchange rates or commodities other commodity pricing risks incurred in the ordinary course of business and not for speculative purposes and guarantees thereofpurposes;
(kf) 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 ERF Program 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 to exceed $100,000,000 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 increased amount as may be approved 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 (A) if such Indebtedness is secured by the Required LendersCollateral 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) without duplication 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, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business or consistent with past practice;
(p) 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 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 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 Latest Maturity Date at the time such Indebtedness is incurred; and, no Incremental Equivalent Debt shall be subject to mandatory redemption, repurchase or prepayment 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; provided that the foregoing requirements of this clause (iii) shall not apply to the extent such Indebtedness constitutes a 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 (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 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 in accordance with this Section 7.03(p), together with the aggregate principal amount of all Incremental Commitments and Incremental Term Loans shall not exceed the Incremental Availability Amount, (vii) the incurrence of any Incremental Equivalent Debt shall be in compliance with Regulation T, U and X promulgated by the FRB, (viii) the security agreements, if applicable, relating to such Indebtedness are substantially the 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;
(q) Indebtedness supported by a letter of credit with respect to which any Borrower or Subsidiary Guarantor has any reimbursement obligations, so long as such reimbursement obligations constitute Indebtedness permitted pursuant to any other clause of this Section 7.03;
(r) Credit Agreement Refinancing Indebtedness; and
(s) all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in clauses (ma) through (ir) 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 bondsabove. In furtherance of Notwithstanding the foregoing, no Property-Level Borrower shall permit any of its Subsidiaries (other than a Loan Party or Excluded Subsidiary shall pursuant to clause (a) or (c) of the definition thereof) to, directly or indirectly, create, incur, assume assume, or suffer to exist any Indebtedness Indebtedness; provided, that is recourse with respect to any such Indebtedness 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 PartyParty or an Excluded Subsidiary pursuant to clause (a) of the definition thereof. For purposes of determining compliance with this Section 7.03, other in the event that an item of Indebtedness meets the criteria of more than Mortgage Recourse Carve-Outsone of the categories of Indebtedness described in clauses (a) through (s) above, the Borrower Representative shall, in 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 amount and type of 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. CreateNo Group Member will create, incur, assume incur or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans ARCA Effective Date and Obligationsset forth on Schedule 6.03 and Permitted Refinancing Indebtedness with respect thereto and certain intercompany indebtedness set forth on Schedule 6.03 under the title “ARCA Effective Date Intercompany Indebtedness” existing on the ARCA Effective Date and Permitted Refinancing Indebtedness with respect thereto, provided that such refinancing is limited to other intercompany debt;
(bi) Mortgage Indebtedness as of under the date hereof and listed on Schedule 5.07(bLoan Documents (including under any Refinancing Term Loan Facility), (ii) [reserved] and (iii) Indebtedness under any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, Refinancing Notes and any Permitted Refinancings thereofRefinancing Indebtedness in respect thereof or in respect of any Permitted Refinancing Indebtedness incurred under this clause (iii);
(c) Monthly paymentIndebtedness of any Subsidiary to Holdco or any other Subsidiary, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from provided that (i) Indebtedness of any agreement providing for indemnification, adjustment of purchase price Subsidiary that is not a Loan Party to Holdco or similar obligations (including contingent earn-out obligations) incurred in connection with any Investment or Disposition permitted hereunder Subsidiary that is a Loan Party shall be subject to Section 6.05 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 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 Subsidiary 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of is a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory pursuant to an Affiliate Subordination Agreement;
(d) (i) Indebtedness incurred subsequent to the Administrative AgentARCA Effective Date secured by purchase money Liens (including Capitalized Leases), (ii) Indebtedness of a Person that becomes a Group Member after the ARCA Effective Date, provided that such Indebtedness is not created in contemplation thereof, and (iii) Permitted Refinancing Indebtedness in respect of Indebtedness described in (i) and (ii), in an aggregate amount for (i), (ii) and (iii) not to exceed $50,000,000;
(e) Indebtedness owed to any bank in respect of any overdrafts and related liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds;
(f) Indebtedness incurred in respect connection with foreign exchange contracts, currency swap agreements, currency future or option contracts and other similar agreements designed to hedge against fluctuations in foreign exchange rates and interest rate swap, cap or collar agreements and interest rate future or option contracts designed to hedge against fluctuations in foreign interest rates, in each case to the extent that such agreement or contract is entered into in the ordinary course of Banking Servicesbusiness;
(g) trade payables and similar current obligations to a trade creditor incurred in Indebtedness of Foreign Subsidiaries not otherwise described herein, not exceeding the ordinary course aggregate principal amount of business and not evidenced by a note€100,000,000 or the equivalent of such amount at any one time outstanding;
(h) Indebtedness incurred consisting of (i) Guarantees by any Loan Party of the Indebtedness of any other Loan Party, (ii) Guarantees by any Group Member that is not a Loan Party or of the Indebtedness of any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or createdother Group Member that is not a Loan Party, or relating (iii) to obligations or liability incurredthe extent permitted by Section 6.05, Guarantees by any Loan Party of the Indebtedness of any other Group Member, in each case to the ordinary course of businessextent the Indebtedness so guaranteed is permitted under the Agreement;
(i) in each case to the extent (if any) that such obligations constitute Indebtedness, including (i) customary indemnification obligations, purchase price or other similar adjustments in respect of workers compensation claimsconnection with acquisitions and dispositions permitted under the Agreement, (ii) reimbursement or indemnification obligations owed to any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance insurance, (iii) obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations, or self-insurance obligations in respect of letters of credit, bank guarantees 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 similar instruments related thereto, in each case provided in the ordinary course of business not more than 180 days before or after the acquisitionbusiness, construction(iv) obligations for deferred payment of insurance premiums, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary(v) take-or-pay obligations contained in supply arrangements; provided, in order to finance each case, that such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 obligation arises in the ordinary course of business and not for speculative purposes in connection with the obtaining of financing;
(j) Indebtedness in an aggregate principal amount not in excess of $15,000,000 at any time consisting of promissory notes to current or former officers, directors and guarantees thereofemployees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests;
(k) Indebtedness incurred under the ERF Program in an aggregate principal amount not in excess of $15,000,000 at any time not to exceed $100,000,000 (consisting of obligations under deferred compensation or such other increased amount as may be approved by the Required Lenders)similar arrangements incurred in connection with Permitted Acquisitions or any other Investment expressly permitted hereunder;
(l) without duplication Indebtedness supported by a letter of any other Indebtednesscredit, all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization a principal amount not to exceed the face amount of original issue discount, fees, expenses and charges with respect to Indebtedness such letter of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereundercredit;
(m) (i) Guarantees by a Loan Party of other Indebtedness of Property-Level Subsidiaries to the extent consisting Holdco Group in an aggregate principal amount not in excess of Guarantees that do not provide $50,000,000 at 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 hereundertime;
(n) so long as at the time and after giving effect thereto, the Incurrence Test is met, other Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the any Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries in the ordinary course of businessParty;
(o) [reserved]; and
(oi) Indebtedness incurred in under the ordinary course of business under performance, surety, statutory Revolving Credit Facility Loan Documents and appeal bonds. In furtherance of (ii) Permitted Refinancing Indebtedness incurred to Refinance Indebtedness permitted pursuant to the foregoing, no Property-Level Subsidiary shall create, incur, assume preceding clause (i) or suffer to exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outsthis clause (ii).
Appears in 1 contract
Sources: Term Loan and Guaranty Agreement (Tower International, Inc.)
Indebtedness. CreateBorrow any monies or create any Indebtedness, incur, assume or suffer to exist any Indebtedness other than the following:
except (a) the Loans and Obligations;
Loan; (b) Mortgage Indebtedness as intercompany loans and advances from Borrower to any Restricted Company or to any New Guarantor (subject to the requirements of the date hereof and listed on Schedule 5.07(bSECTION 8.11(c) (other than any Cellular Partnership or GRCGP), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and any Permitted Refinancings thereof;
; (c) Monthly paymentborrowings by any cellular partnership obligor from Borrower, installment SO LONG AS (i) such indebtedness is evidenced by Cellular Partnership Promissory Notes whose form and terms including amortization schedules are acceptable to Agents; (ii) such Cellular Partnership Promissory Notes and all partnership interests of the Companies in such Cellular Partnership Obligor are pledged or financing plans assigned by Borrower or the appropriate Company to Administrative Agent, for the payment benefit of insurance policy premiums;
Lenders, pursuant to appropriate Collateral Security Documents, and (iii) such Cellular Partnership Obligor has executed a Guaranty and has granted liens and security interests in all of its assets in favor of Administrative Agent (for the benefit of Lenders) by execution and delivery of all Collateral Security Documents required by Administrative Agent; and (iv) such Cellular Partnership Obligor has delivered all such searches, opinions, financing statements, and other documents reasonably requested by Agents; (d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) indebtedness 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 Interest Rate Agreements entered into pursuant to such agreement, or (ii) any Mortgage Indebtedness incurred to 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
SECTION 8.21 hereof; (e) Indebtedness of Borrower to Communications; PROVIDED THAT, such Indebtedness (i) is unsecured, (ii) unguaranteed, (iii) is expressly subordinated to the Obligation pursuant to a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV SubsidiarySubordination Agreement, and Indebtedness of 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 prior repayment in full of the Obligations (iv) which Subordinated Debt and related Subordination Agreement are on terms reasonably satisfactory acceptable to the Administrative Agent;
Borrower and Agents; (f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor indebtedness incurred in the ordinary course of business and for value received; (g) Indebtedness arising under Capital Leases not evidenced by a note;
to exceed $10,000,000 in the aggregate on any date of determination; (h) Indebtedness incurred owed by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created, or relating Borrower to obligations or liability incurred, ▇▇▇▇▇▇ Wireline Company existing on the Effective Date in the ordinary course principal amount of business$2,510,533 (which indebtedness, including in respect of workers compensation claimsonce repaid, 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;
may not be reborrowed); and (i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary of indebtedness existing on the Borrower that is not a Loan Party in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 Effective Date 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 after 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 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-Outslisted on SCHEDULE 5.11.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than Indebtedness, except the following, without duplication:
(a) Indebtedness of the Loans and ObligationsLoan Parties under the Loan Documents;
(b) Mortgage Indebtedness as of existing on the date hereof Effective Date and listed described on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof6.01, and any Permitted Refinancings Refinancing thereof;
(ci) Monthly paymentAttributable Indebtedness and other Indebtedness (including Capitalized Lease Obligations) financing the acquisition, installment construction, repair, replacement or financing plans improvement of fixed or capital assets and incurred concurrently with or within 180 days after the applicable acquisition, construction, repair, replacement or improvement, (ii) Attributable Indebtedness arising out of Permitted Sale-Leasebacks and (iii) any Permitted Refinancing of any Indebtedness set forth in the immediately preceding clauses (i) and (ii); provided that the aggregate principal amount of Indebtedness (including without limitation Attributable Indebtedness, but excluding Attributable Indebtedness incurred pursuant to clause (ii)) outstanding under this Section 6.01(c) does not exceed $35,000,000, of which not more than $10,000,000 at any one time outstanding may be used for the payment of insurance policy premiums;Permitted Sale-Leasebacks pursuant to clause (ii).
(d) Indebtedness arising from (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations Swap Agreements designed to a trade creditor hedge against interest rates, foreign exchange rates or commodities pricing risks incurred in the ordinary course of business and not evidenced by a notefor speculative purposes;
(he) Indebtedness incurred by a Loan Party the Borrower or any of its Subsidiaries or Controlled 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, created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims; Indebtedness representing deferred compensation to employees of the Borrower and its Subsidiaries incurred in the ordinary course of business;
(if) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements, in each case, in connection with Deposit Accounts in the ordinary course of business;
(g) Indebtedness consisting of (including Capitalized Lease ObligationsA) incurred the financing of insurance premiums or (B) take-or-pay obligations contained in supply arrangements, in each case in the ordinary course of business;
(h) obligations in respect of performance, bid, appeal and surety bonds and performance and completion guarantees and similar obligations provided by (i) any Subsidiary or Consolidated JV Subsidiary of the Borrower that is not a Loan Party or any of its Subsidiaries, in each case in the ordinary course of business not more than 180 days before or after consistent with past practice;
(i) Guarantees by the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement Borrower and the Subsidiaries in respect of a fixed or capital asset incurred by Indebtedness of the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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) ; provided that, if the Indebtedness representing deferred compensation being guaranteed is subordinated to current or former directorsthe Obligations, officers, employees, members of management, managers, and consultants such Guarantee Obligation shall be subordinated to the Guarantee of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries Obligations on terms at least as favorable to the Lenders as those contained in the ordinary course subordination 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.such Indebtedness;
Appears in 1 contract
Sources: Credit Agreement (Lmi Aerospace Inc)
Indebtedness. Create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and ObligationsIndebtedness of any Loan Party pursuant to any Loan Document;
(b) Mortgage Indebtedness as of the date hereof Borrower to any Subsidiary, Holdings or Parent and listed on Schedule 5.07(b), of any renewals, amendments, modifications Subsidiary Guarantor to the Borrower or extensions thereof that do not increase the principal amount thereof, and any Permitted Refinancings thereofother Subsidiary;
(c) Monthly paymentGuarantee Obligations of the Borrower, installment or financing plans for Holdings and any Subsidiary of the payment Borrower in respect of insurance policy premiumsthe Guarantee and Collateral Agreement and any other Security Documents;
(d) guarantees by the Borrower, Holdings or any of its Subsidiaries of obligations of any Subsidiary Guarantor or the Borrower;
(e) obligations in respect of surety bonds, bank guarantees, letters of credit and similar obligations incurred in the ordinary course of business;
(f) Indebtedness arising from outstanding on the date hereof or required to be incurred pursuant to a Contractual Obligation in existence on the date hereof (other than AESOP Indebtedness, Centre Point Indebtedness and Securitization Indebtedness) and listed on Schedule 7.2(f) and any Permitted Refinancing thereof;
(g) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(h) in an aggregate principal amount not to exceed $100,000,000 at any one time outstanding;
(h) Indebtedness of the Borrower and Avis Budget Finance in respect of the Senior Unsecured Notes and any Permitted Refinancing thereof;
(i) unsecured Guarantee Obligations of Holdings and any Subsidiary of the Borrower in respect of the Senior Unsecured Notes; provided that each guarantor under the Senior Unsecured Notes or any Permitted Refinancing thereof shall be a guarantor of the Obligations pursuant to the Guarantee and Collateral Agreement or such other agreement providing for indemnificationas the Administrative Agent may approve in its reasonable discretion;
(j) AESOP Indebtedness, adjustment of purchase price or similar obligations Centre Point Indebtedness and Additional Foreign Vehicle Indebtedness;
(k) Securitization Indebtedness;
(l) Recourse Vehicle Indebtedness (including contingent earn-out obligationsany Guarantee Obligations in respect thereof);
(m) Indebtedness incurred in connection with any Investment acquisition by the Borrower or Disposition permitted hereunder and Indebtedness comprising guarantees, letters any of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance its Subsidiaries of vehicles directly from a manufacturer pursuant to such agreement, or manufacturer’s repurchase program; provided that (i) such Indebtedness is not greater than the net book value of such vehicles and (ii) any Mortgage Indebtedness incurred to finance, or assumed in connection with, an acquisition or Investment in a Hotel Property (or part of a Hotel Property) such vehicles could not be financed under the AESOP Financing Program 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofCentre Point Financing Program;
(en) Indebtedness incurred pursuant to terminal rental adjustment clause lease financings of a Loan Party trucks and secured loans to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, finance trucks in each case to be used in the truck rental operations of the Borrower and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Partyits Subsidiaries; provided that any such secured loans shall not be guaranteed by Parent.
(o) Indebtedness under any Swap Agreement;
(p) Indebtedness of any Foreign Subsidiary, Excluded Subsidiary or Securitization Entity to the Borrower or any Subsidiary Guarantor;
(q) Guarantee Obligations by the Borrower or any Subsidiary Guarantor in respect of Indebtedness of any Foreign Subsidiary, Excluded Subsidiary or Securitization Entity in an aggregate amount not to exceed $50,000,000 at any one time outstanding;
(r) Indebtedness of any Foreign Subsidiary, Excluded Subsidiary or Securitization Entity to any Foreign Subsidiary, Excluded Subsidiary or Securitization Entity;
(s) Guarantee Obligations incurred by any Foreign Subsidiary, Excluded Subsidiary or Securitization Entity in respect of Indebtedness of any Foreign Subsidiary, Excluded Subsidiary or Securitization Entity;
(t) Indebtedness of any Foreign Subsidiary in an aggregate principal amount not to exceed $350,000,000 at any one time outstanding and any Permitted Refinancing thereof;
(u) Indebtedness of any Person that becomes a Loan Party Subsidiary pursuant to a Specified Transaction or that is otherwise assumed by the Borrower or any of its Subsidiaries in connection with a Specified Transaction which is not incurred in contemplation of such Specified Transaction and any Permitted Refinancing thereof;
(v) unsecured or subordinated Indebtedness of the Borrower, Holdings or any Subsidiary Guarantor of the Borrower or an Escrowed Debt Issuer (including any Guarantee Obligations of the Borrower, Holdings or any Subsidiary Guarantor in respect thereof) having no scheduled principal payments or prepayments (other than (i) as a result of change of control, asset sale, or issuance of Capital Stock or Indebtedness, (ii) payments required to prevent any such Indebtedness from being treated as an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, (iii) maturity payments for a customary bridge financing which, subject to customary conditions, provides for automatic conversion or exchange into Indebtedness, or (iv) pursuant to other mandatory prepayment requirements customary for similar Indebtedness after taking into account then prevailing market conditions) prior to the Final Term Loan Maturity Date incurred in connection with Specified Transactions and any Permitted Refinancing thereof;
(w) additional Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount not to exceed 3.25% of Consolidated Tangible Assets outstanding at the time such Indebtedness is incurred and any Permitted Refinancing thereof; provided that not more than $100,000,000 aggregate principal amount of Indebtedness outstanding under this clause (w) may have scheduled principal payments or prepayments (other than (i) as a result of change of control, asset sale, or issuance of Capital Stock or Indebtedness, (ii) payments required to prevent any such Indebtedness from being treated as an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, or (iii) pursuant to other mandatory prepayment requirements customary for similar Indebtedness after taking into account then prevailing market conditions, in each case, not otherwise in conflict with the mandatory prepayment requirements contained in Section 2.11) prior to the date that is 90 days after the Final Revolving Termination Date;
(x) Indebtedness incurred in connection with the financing of any insurance premiums;
(y) additional Indebtedness of the Borrower, Holdings or any Subsidiary Guarantor or Foreign Subsidiary or Controlled JV Escrowed Debt Issuer (including any Guarantee Obligations of the Borrower, Holdings or any Subsidiary Guarantor in respect thereof) having no scheduled principal payments or prepayments (other than (i) as a result of change of control, asset sale, or issuance of Capital Stock or Indebtedness, (ii) payments required to prevent any such Indebtedness from being treated as an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, (iii) maturity payments for a customary bridge financing which, subject to customary conditions, provides for automatic conversion or exchange into Indebtedness or (iv) pursuant to other mandatory prepayment requirements customary for similar Indebtedness after taking into account then prevailing market conditions, in each case, not otherwise in conflict with the mandatory prepayment requirements contained in Section 2.11) prior to the date that is 90 after the Final Revolving Termination Date and any Permitted Refinancing thereof; provided that (A) the aggregate principal amount of Indebtedness pursuant to this Section 7.2(y) of all Foreign Subsidiaries shall not a Loan Party exceed $1,000,000,000 at any one time outstanding; and (B) with respect to any secured Indebtedness incurred pursuant to this Section 7.2(y):
(1) the aggregate principal amount of such Indebtedness shall not exceed $375,000,000;
(2) the Liens securing such Indebtedness shall be contractually subordinated junior in right of payment and priority to the prior repayment in full of those securing the Obligations on terms and the Administrative Agent shall have entered into an intercreditor agreement customary for similar issuances of Indebtedness, in form and substance reasonably satisfactory to the Administrative Agent;, with the holders of such Indebtedness or an agent or trustee or other representative thereof and the Borrower, and such intercreditor agreement (as may be amended, modified or replaced with the consent of the Administrative Agent) shall remain in full force and effect at any time such Indebtedness remains outstanding; and
(f3) after giving pro forma effect to the incurrence of such Indebtedness and the use of proceeds thereof (with such calculation being made as though the Maximum Facilities Amount is then outstanding), (x) the Borrower shall be in respect compliance with Section 7.1 as of Banking Services;
the last day of the most recently ended fiscal quarter for which financial statements have been delivered and (gy) trade payables and similar current obligations the Consolidated Secured Leverage Ratio shall be less than 4.00 to a trade creditor incurred in 1.00 as of the ordinary course last day of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;most recently ended fiscal quarter for which financial statements have been delivered.
(i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary of the Borrower that is not a Loan Party and its Subsidiaries (including any Guarantee Obligations in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset respect thereof) incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order (x) to finance such acquisitiona portion of the Avis Europe Acquisition or (y) to refinance any Term Loans (including any Incremental Term Loans), constructionand in each case, repairany Permitted Refinancing thereof, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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, Indebtedness of Avis Europe and its Subsidiaries incurred in the ordinary course of business not more than 180 days before under revolving credit facilities on or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement date of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiary, in order the consummation of the Avis Europe Acquisition to finance the working capital needs and general corporate purposes of Avis Europe and its Subsidiaries and any Permitted Refinancing thereof. (aa) Indebtedness and guarantees permitted under Section 7.6. provided, that if the Group Member’s action or event meets the criteria of more than one of the types of Indebtedness described in the clauses above, the Borrower in its sole discretion may classify (and reclassify) such acquisitionaction or event in one or more clauses (including in part under one such clause and in part under another such clause). For purposes of determining compliance with this Section 7.2 and Section 7.3(s), constructionthe amount of any Indebtedness denominated in a currency other than Dollars shall be the Dollar Equivalent thereof on the date such Indebtedness is incurred or committed (in the case of Indebtedness pursuant to a revolving or delayed draw credit facility); provided that, repairif any Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being incurred), replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement and such refinancing would cause the applicable Dollar-denominated cap in Section 7.2 and Section 7.3(s) to be exceeded if the amount of such fixed refinancing Indebtedness (or capital asset;
(jthe Dollar Equivalent thereof) Indebtedness is calculated at the relevant currency exchange rate in respect effect on the date of Swap Contracts designed to hedge against the Borrower’s or any Subsidiary’s exposure to interest ratessuch refinancing, 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 such Dollar denominated cap shall be deemed not to exceed $100,000,000 have been exceeded so long as the aggregate principal amount of such refinancing Indebtedness (or the Dollar Equivalent thereof on the date of such other increased amount as may be approved by the Required Lenders);
(lrefinancing) 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) does not exceed (i) Guarantees by a Loan Party the Dollar Equivalent of the aggregate outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced on the date 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 refinancing, as applicable, plus (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties in respect the aggregate amount of Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current or former directorsfees, officersunderwriting discounts, employeespremiums, members of management, managers, accrued interest and consultants of the Loan Parties and/or any of their respective Subsidiaries other costs and Controlled JV Subsidiaries in the ordinary course of business; and
(o) Indebtedness expenses 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-Outsconnection with such refinancing.
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except the following (and, in each case, any Permitted Refinancing Indebtedness other than the following:
in respect thereof): (a) Indebtedness existing on the Loans Closing Date and Obligations;
set forth on Schedule 7.2 (other than intercompany Indebtedness refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Restricted Subsidiary); (b) Mortgage Indebtedness as of created hereunder and under 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;
other Loan Documents; (c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;)
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment Indebtedness 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 Group Members pursuant to such agreementSwap Agreements that are not entered into for purposes of speculation, or (ii) Indebtedness under any Mortgage Indebtedness incurred to 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 Cash Management Agreement entered into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor incurred in the ordinary course of business and not evidenced by a note;
(hiii) Indebtedness incurred by a Loan Party consisting solely of (x) cash collateralized letters of credit and deposits in connection with rent for leased real property in the ordinary course of business and (y) other amounts deposited in connection with an Investment permitted under Section 7.7, ordinary course or any support obligations arising in the ordinary course of its Subsidiaries business or Controlled JV Subsidiaries 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; (d) Indebtedness owed to (including obligations in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts acceptances or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to any Group Member, pursuant to reimbursement or self-insurance indemnification obligations to such Person; (e) Indebtedness of the Borrower or any other Indebtedness with respect Group Member to reimbursement-type obligations regarding workers compensation claims;
the Borrower or any other Group Member, to the extent permitted by Section 7.7; provided that (i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) of any Subsidiary or Consolidated JV Subsidiary of the Borrower Loan Party to any Group Member that is not a Loan Party in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i) shall be without recourse subordinated to the Obligations pursuant to the Global Intercompany Note or otherwise on terms reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders), (ii) intercompany Indebtedness owing to any Loan Parties Party shall be evidenced by the Global Intercompany Note and shall be pledged pursuant to the Guarantee and Collateral Agreement and (iiiii) Indebtedness of Group Members that are not Loan Parties owing to any Loan Party Party, together with any Investments by Loan Parties in Group Members that are not Loan Parties pursuant to Section 7.7(a)(A), Section 7.7(k) or Section 7.7(l) shall not exceed an aggregate amount at equal to $10,000,000 (plus any time not return of capital actually received by the respective investors in respect of Investments previously made by them pursuant to exceed $10,000,000Section 7.7(a)(A), incurred in the ordinary course of business not more than 180 days before Section 7.7(k) or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;
Section 7.7(l)); (jf) Indebtedness in respect of Swap Contracts designed to hedge against the Borrower’s or any Subsidiary’s exposure to interest ratesperformance bonds, 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 Indebtednesswarranty bonds, all premiums (if any)bid bonds, 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 createsurety bonds and completion or performance guarantees and similar obligations, incur, assume or suffer to exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.in each case
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the following:
(exclusive of trade debt) except in respect of (a) the Loans and Obligations;
; (b) Mortgage Indebtedness as Capitalized Lease Obligations consisting of the date hereof and listed on Schedule 5.07(b)Capital Lease of the wet sand plant located in ▇▇▇▇▇▇ County, Wisconsin plus additional Capitalized Lease Obligations in an aggregate amount at any renewals, amendments, modifications or extensions thereof that do time outstanding not increase the principal amount thereof, and any Permitted Refinancings thereof;
to exceed $25,000,000; (c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
Permitted Purchase Money Indebtedness; (d) Indebtedness arising from under any Hedge so long as such Indebtedness (except to the extent constituting Hedge Liabilities) is unsecured; (e) Indebtedness owing to any other Credit Party or Restricted Subsidiary thereof so long as any such Indebtedness owing to any Person that is not a Credit Party is subordinated pursuant to an agreement reasonably satisfactory to Agent; (f) 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 Refinancing Indebtedness in respect thereof; (h) Indebtedness in respect of workers’ compensation claims, property casualty or liability insurance, and self- insurance obligations, in each case in the ordinary course of business; (i) 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, (j) Indebtedness of the Parent Guarantor or any agreement 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 price, earnouts or similar obligations (including contingent earn-out obligations) , in each case, incurred or assumed in connection with any Investment or a Disposition permitted hereunder and under Section 7.1(b) or a Permitted Acquisition, (l) Indebtedness comprising guaranteesof the Parent Guarantor or any Restricted Subsidiary in connection with performance bonds, letters bid bonds, appeal bonds, bankers acceptances, insurance obligations, workers’ compensation claims, health or other types of credit, bank guarantiessocial security benefits, surety bonds, performance completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Parent Guarantor or similar instruments securing the performance pursuant to such agreement, or (ii) any Mortgage Indebtedness incurred to 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Restricted Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created, or relating pursuant to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance obligations and in each case not in connection with the borrowing of money 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 the obtaining of the Borrower that is not a Loan Party in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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.advances,
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans ClosingEleventh Amendment Effective Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, or (ii) any Mortgage Indebtedness incurred to finance, or assumed in connection with, an acquisition or Investment each case in a Hotel Property (or part the ordinary course 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofbusiness;
(e) Indebtedness of a Loan Party the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary; provided, that, other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Holdings and the subsidiaries to finance working capital needs of the subsidiaries, (i) Indebtedness of 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 Subsidiary Loan Party owing to the Loan Parties shall be contractually subject to Section 6.04(b) and (ii) Indebtedness of the Borrower to any Subsidiary that is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall, if legally permissible, be subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness (including obligations in respect of Banking Services;
(gletters of credit and bank guarantees) trade payables in respect of performance, bid, appeal and similar current obligations to a trade creditor incurred surety bonds and completion guarantees provided by the Borrower or any of its Subsidiaries in the ordinary course of business and not evidenced by a noteor consistent with past practice or industry practice;
(hg) 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 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 $622.02,307.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), (ii) the Senior SubordinatedExchangeable Notes in an aggregate principal amount that is not in excess of $200.0403.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), and (iii) 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), so long as the Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof is subordinated on substantially the same terms as set forth in the Senior Subordinated Notes Indenture with respect to the Senior Subordinated Notes, (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 its 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 6.04(b); provided, that Guarantees by the Borrower or Controlled JV Subsidiaries 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, 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, bankers’ acceptances, 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 created(ii) take-or-pay obligations contained in supply arrangements, or relating to obligations or liability incurredin each case, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) other 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary Loan Party so long as (A) no Default or Controlled JV SubsidiaryEvent of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to the issuance, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade incurrence or improvement assumption of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i) Indebtedness, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be without recourse greater than 4.25 to any Loan Parties 1.00 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness of Subsidiaries that are not Loan Party Parties in an aggregate amount not to exceed at any time not outstanding the greater of $330 million and 3.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to exceed $10,000,000, incurred 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 ordinary course of business not more than 180 days before or after 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 to pay the deferred purchase price of goods or Controlled JV Subsidiaryservices or progress payments in connection with such goods and services; provided, that such obligations are incurred in 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 connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not for speculative purposes and guarantees thereofin connection with the borrowing of money or any Swap Agreements;
(ku) Indebtedness representing deferred compensation to employees and directors of the Borrower or any Subsidiary incurred under (i) in the ERF Program ordinary course of business or (ii) in an aggregate amount at any time not to exceed $100,000,000 connection with the Transactions (including as a result of the cancellation or such vesting of outstanding options and other increased amount as may be approved by the Required Lendersequity-based awards in connection therewith);
(lv) without duplication 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 Indebtedness, 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 and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to additional or contingent interest on obligations described in paragraphs (a) through (bb) above;
(dd) Indebtedness of the Loan Parties Borrower pursuant to (i) the First and their respective Subsidiaries a Half Lien Refinancing Notes in an aggregate principal amount that is not in excess of $1,025.0 million (plus any interest and Controlled JV Subsidiaries permitted hereunderpremium (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;
(mee) Indebtedness pursuant to any First Lien Refinancing Notes; provided that the Borrower shall Refinance Term 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) 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-OutsJunior Refinancing Indebtedness; provided that (x) 100% of the Net Cash Proceeds of such Guarantees are entered into Junior Refinancing Indebtedness must be used only by the Borrower to Refinance all or any portion of the Notes or any other Junior Financing (or all or any portion of any Permitted Refinancing Indebtedness in the ordinary course of business respect thereof) and (ii) Guarantees by Controlled JV Subsidiaries any refinancing, refunding, renewal, replacement, defeasance or Subsidiaries extension of any Junior Refinancing Indebtedness; provided that do 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 constitute Loan Parties 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 Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current one or former directors, officers, employees, members more series of management, managers, and consultants senior unsecured notes or senior secured notes or additional loans that will be secured by all or a portion of the Loan Parties Collateral on a pari passu or junior basis with the Obligations, that are issued or made in lieu of loans under the Incremental Revolving Facility and/or any Incremental Term Loans and Permitted Refinancing Indebtedness in respect thereof (the “Additional NotesDebt ”); provided that (A) such Additional NotesDebt are not scheduled to mature prior to the date that is 91 days after the Term B Facility Maturity Date, (B) the aggregate principal amount of their respective Subsidiaries all Additional NotesDebt issued pursuant to this clause (gg) shall not exceed (x) $500 million less (y) the aggregate principal amount of all loans under the Incremental Revolving Facility and Controlled JV Subsidiaries in Incremental Term Loans made after the ordinary course of business; and
ClosingEleventh Amendment Effective Date pursuant to Section 2.20 and clause (ox) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance of the foregoingdefinition of “Incremental Amount”, no Property-Level Subsidiary (C) such Additional NotesDebt shall create, incur, assume or suffer to exist any Indebtedness that is recourse not be subject to any Guarantee by any Subsidiary other than a Loan Party, (D) in the case of Additional NotesDebt 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 Mortgage Recourse Carve-Outs.any asset constituting Collateral, (E) if such Additional NotesDebt are secured, the security agreements relating to such Additional NotesDebt shall be substantially the same as the Security Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (F) subject to Section 1.04, 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 Add
Appears in 1 contract
Sources: Amendment to Credit Agreement (Anywhere Real Estate Group LLC)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness created hereunder and under the Loans and Obligationsother Loan Documents;
(b) Mortgage Indebtedness as of incurred under the date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the ABL Documents in an aggregate principal amount thereofnot to exceed the ABL Cap (as defined in the ABL/Term Intercreditor Agreement), and any Permitted Refinancings Refinancing in respect thereof;
(c) Monthly paymentIncremental Equivalent Debt, installment or financing plans for the payment of insurance policy premiumsPermitted Ratio Debt, and any Permitted Refinancing in respect thereof;
(d) Indebtedness arising from (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 Borrower or any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments created or issued or created, or relating to obligations or liability incurred, in the ordinary course of business, including business in respect of workers connection with workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers workers’ compensation claims;
(e) the incurrence of Indebtedness of the Borrower to a Subsidiary or of Indebtedness of a Subsidiary to the Borrower or another Subsidiary to the extent permitted by Section 6.03; provided that any such Indebtedness for borrowed money incurred by a Loan Party and owing to a Subsidiary that is not a Loan Party is expressly subordinated in right of payment to the Loan Obligations; provided, further that any subsequent issuance or transfer of any Equity Interests or any other event which results in any such Subsidiary ceasing to be a Subsidiary or any such subsequent transfer of any such Indebtedness (except to the Borrower or a Subsidiary or any pledge of such Indebtedness constituting a lien permitted by Section 6.02) will be deemed, in each case, to be an incurrence of such Indebtedness (to the extent such Indebtedness is then outstanding) not permitted by this clause (e);
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case provided in the ordinary course of business or consistent with industry practice, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with industry practice;
(g) 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(g) at such time, would not exceed the greater of $25,000,000 and 25% of EBITDA of the Borrower and its Subsidiaries calculated on a pro forma basis for the then most recently ended Test Period;
(h) Guarantees by the Borrower or any Subsidiary of any Indebtedness of the Borrower or any Subsidiary permitted to be incurred under this Agreement;
(i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary representing deferred compensation to employees, consultants or Consolidated JV Subsidiary independent contractors of the Borrower that (or, to the extent such work is not a Loan Party done for the Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business not more than 180 days before or after consistent with industry practice;
(i) ABL Bank Product Obligations and ABL Hedge Obligations (each as defined in the acquisitionABL/Term Intercreditor Agreement) and (ii) the incurrence of Indebtedness owed to banks and other financial institutions incurred in the ordinary course of business or consistent with industry practice in connection with ordinary banking arrangements to manage cash balances of the Borrower and its Subsidiaries (including short-term pooling and similar intercompany arrangements);
(k) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, constructionin each case, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade in the ordinary course of business or improvement consistent with industry practice;
(l) Indebtedness arising from the honoring by a bank or other financial institution of a fixed check, draft or capital asset similar instrument drawn against insufficient funds in each case incurred in the ordinary course of business or other cash management services incurred in the ordinary course of business or consistent with industry practice;
(m) Indebtedness supported by a letter of credit issued under any revolving credit or letter of credit facility permitted by Section 6.01, in a principal amount not in excess of the stated amount of such letter of credit;
(n) Indebtedness in respect of Hedging Agreements (other than any Hedging Agreement entered into for speculative purposes) and Hedging Agreements (as defined in the ABL Credit Agreement);
(o) Indebtedness of the Borrower or any Subsidiary or Controlled JV Subsidiary, in order with respect to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i(i) shall be without recourse to any Loan Parties Capitalized Lease Obligations and (ii) any Loan Party purchase money indebtedness in an aggregate amount at any time outstanding not to exceed the greater of $10,000,00025,000,000 and 25% of EBITDA of the Borrower and its Subsidiaries calculated on a pro forma basis for the then most recently ended Test Period, in each case determined at the time of incurrence; provided that (A) such Indebtedness is issued and any Liens securing such Indebtedness are created within 180 days after the acquisition, construction, lease or improvement of the asset financed and (B) any such Indebtedness is secured only by the asset, equipment or property acquired, constructed, leased or improved (or assets affixed or appurtenant thereto and additions and accessions) in connection with the incurrence of such Indebtedness, related property, replacements of such property, equipment or assets, and additions and accessions and, in the case of multiple financings of equipment provided by any lender, other equipment financed by such lender, and in each case, proceeds and products thereof and (ii) any Permitted Refinancing thereof;
(p) so long as no Event of Default shall have occurred and be continuing or would result therefrom, Indebtedness assumed (but not incurred) by the Borrower or any Subsidiary in connection with a Permitted Acquisition; provided that (i) such Indebtedness was not created in anticipation or contemplation of such Permitted Acquisition and (ii) the Total Net Leverage Ratio as of the end of the Test Period then most recently ended (calculated on a pro forma basis after giving effect to such assumption) does exceed the greater of (A) 5.00 to 1.0 and (B) the Total Net Leverage Ratio as of immediately prior to the assumption of such Indebtedness;
(q) Permitted Pari Passu Secured Refinancing Debt and Permitted Junior Refinancing Debt, and any Permitted Refinancing thereof;
(r) the Unsecured Bonds and any Permitted Refinancing thereof;
(s) Indebtedness constituting indemnification obligations or obligations in respect of purchase price or other similar adjustments (including earnout or similar obligations) incurred in connection with any Permitted Acquisition or any Disposition permitted under this Agreement;
(t) Indebtedness of the Borrower and any Subsidiary in existence as of the Closing Date and any Permitted Refinancing thereof; provided that any such item of Indebtedness with an aggregate outstanding principal amount on the Closing Date in excess of $1,000,000 shall be set forth on Schedule 6.01;
(u) Indebtedness incurred by the Borrower or a Subsidiary in connection with bankers’ acceptances, discounted bills of exchange or the discounting or factoring of receivables for credit management purposes, in each case incurred or undertaken in the ordinary course of business not more than 180 days before or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetconsistent with industry practice on arm’s-length commercial terms;
(jv) the incurrence of Indebtedness attributable to (but not incurred to finance) the exercise of appraisal rights or the settlement of any claims or actions (whether actual, contingent or potential) with respect to any acquisition (by merger, consolidation or amalgamation or otherwise); and
(w) 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;
(ki) Indebtedness incurred under the ERF Program T▇ ▇▇▇▇ Greenwich Loan Documents and any Permitted Refinancing in respect thereof, in any case in an aggregate outstanding principal amount not to exceed the greater of $17,500,000 and 17.5% of EBITDA of the Borrower and its Subsidiaries calculated on a pro forma basis for the then most recently ended Test Period at any time not to exceed $100,000,000 and (ii) any Permitted Refinancing in respect thereof. Accrual of interest or such other increased amount as may be approved by dividends or 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 discountdiscount and the payment of interest or dividends in the form of additional Indebtedness will be deemed not to be an incurrence or issuance of Indebtedness for purposes of this Section 6.01 and will be deemed not to constitute outstanding Indebtedness for purposes of determining basket usage in respect of this Section 6.01. For purposes of determining compliance with any Dollar-denominated restriction on the incurrence of Indebtedness, feesthe principal amount of Indebtedness denominated in another currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred (or at Borrower’s election, expenses at the time of “pricing” and charges with allocation of commitments in respect thereof) in the case of term debt, or first committed (or at Borrower’s election, at the time of “pricing” and allocation of commitments in respect thereof) in the case of revolving credit Indebtedness; provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in another currency, 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 Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
(m) principal amount of such refinancing Indebtedness does not exceed (i) Guarantees by a Loan Party the principal amount of such 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 being refinanced (plus unused commitments thereunder), plus (ii) Guarantees by Controlled JV Subsidiaries an amount equal to unpaid accrued interest, fees and premium (including tender premium) and penalties (if any) thereon plus upfront fees and original issue discount and other reasonable and customary fees and expenses incurred or Subsidiaries that do not constitute Loan Parties paid in respect connection with such refinancing. The principal amount 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 to refinance other Indebtedness, if incurred in a different currency from the ordinary course of business under performanceIndebtedness being refinanced, surety, statutory and appeal bonds. In furtherance of shall be calculated based on the foregoing, no Property-Level Subsidiary shall create, incur, assume or suffer currency exchange rate applicable to exist any the currencies in which such respective Indebtedness is denominated that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outsin effect on the date of such refinancing.
Appears in 1 contract
Sources: Credit Agreement (TravelCenters of America Inc. /MD/)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness of any Loan Party under the Loan Documents (including Indebtedness in respect of any Incremental Facility, Extended Loans and ObligationsReplacement Loans) and any Permitted Refinancing Indebtedness in respect thereof;
(b) Mortgage Indebtedness as of the date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do pursuant to Swap Agreements not increase the principal amount thereof, and any Permitted Refinancings thereofincurred for speculative purposes;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued for the benefit of) any person providing workers’ compensation, securing unemployment insurance and other social security laws or created, or relating to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claimsregulation, health, disability or other employee benefits benefits, salary, wages or other compensation or property, casualty or liability insurance or self-insurance or other Indebtedness with respect similar obligations to reimbursement-type obligations regarding workers compensation claimsthe Lead Borrower or any Restricted Subsidiary;
(d) Indebtedness of any Borrower to any Restricted Subsidiary and of any Restricted Subsidiary to any Borrower or any other Subsidiary, provided that (i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) of any Restricted Subsidiary or Consolidated JV Subsidiary of the Borrower that is not a Subsidiary Loan Party to the Loan Parties shall be permitted under Section 6.04(b) and (ii) Indebtedness of the Lead Borrower and of any other Loan Party to any Subsidiary that is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) (A) shall be subordinated to the Secured Obligations on terms reasonably acceptable to the Administrative Agent and (B) shall be evidenced by intercompany promissory notes and such notes owned or held by a Loan Party shall be pledged as Collateral pursuant to the Collateral Agreement;
(e) Indebtedness in respect of bids, trade contracts (other than for debt for borrowed money), leases (other than Capital Lease Obligations), statutory obligations, surety, stay, customs and appeal bonds, performance, performance and completion and return of money bonds, government contracts, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business (including Indebtedness in respect of letters of credit, bank guarantees or similar instruments in lieu of such items to support the issuance thereof);
(f) 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;
(g) (I) Indebtedness assumed or incurred in connection with Permitted Business Acquisitions or any acquisition permitted under this Agreement, and provided that (A) immediately before and after giving effect to the assumption or incurrence of such Indebtedness, no Event of Default shall have occurred and be continuing, (B) (i) in the case of Indebtedness assumed, such Indebtedness exists at the time of such Permitted Business Acquisition (or other permitted acquisition) and is not more created in contemplation of such event or (ii) in the case of Indebtedness incurred, (w) such Indebtedness which is secured shall not have a weighted average life to maturity less than 180 the weighted average life to maturity of the Term Facility, (x) such Indebtedness which is unsecured shall not provide for any mandatory prepayment or redemption (other than customary asset sale, event of loss, change of control mandatory offers to purchase and customary acceleration rights after an event of default) prior to the date that is, at the time of such incurrence, ninety-one (91) days after the Latest Maturity Date, (y) such Indebtedness matures no earlier than the date that is, at the time of such incurrence, ninety-one (91) days after the Latest Maturity Date and (z) immediately before and after giving effect to the incurrence thereof, the Borrowers have satisfied the Total Leverage Condition and (C) immediately after giving effect to the assumption or incurrence of such Indebtedness, the Borrowers are in Pro Forma Compliance, 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 any Borrower or any Restricted Subsidiary prior to or within two hundred seventy (270) days after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade repair or improvement of a fixed or capital the respective asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansionrepair or improvement, developmentand any Permitted Refinancing Indebtedness in respect thereof, installation, relocation, renewal, maintenance, upgrade or 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 outstanding principal amount that at the time of, and after giving effect to, the incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (i) of this Section 6.01) would not exceed an aggregate principal amount outstanding at any time not the greater of (x) $17.5 million and (y) an amount equal to exceed $10,000,000, incurred in 2.5% of the ordinary course Consolidated Total Assets of business not more than 180 days before the Lead Borrower and the Restricted Subsidiaries for the Test Period most recently ended on or after prior to the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement date of a fixed or capital asset determination for which financial statements have been delivered pursuant to Section 5.04;
(i) Capital Lease Obligations incurred by a Loan Party, any Borrower or any Restricted 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 in an aggregate outstanding principal amount that at the time of, and after giving effect to the incurrence of (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01) would not exceed an aggregate principal amount outstanding at any time the greater of (x) $17.5 million and (y) an amount equal to 2.5% of the Consolidated Total Assets of the Lead Borrower and the Restricted Subsidiaries for the Test Period most recently ended on or Controlled JV Subsidiary, in order prior to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement the date of such fixed or capital assetdetermination for which financial statements have been delivered pursuant to Section 5.04;
(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[Reserved];
(k) Indebtedness incurred under the ERF Program in an aggregate amount at any time not to exceed $100,000,000 Guarantees (or such other increased amount as may be approved i) by the Required Lenders);
Borrowers or any Loan Party (lwhich guarantees shall be subordinated in the case of any Permitted Debt Securities or any Permitted Refinancing Indebtedness in respect thereof on terms no less favorable than the subordination applicable to the guarantees or refinanced Indebtedness) without duplication of any Indebtedness of any other IndebtednessLoan Party permitted to be incurred under this Agreement, all premiums (if any)ii) by any Borrower or any Loan Party of Indebtedness otherwise permitted hereunder of any Restricted Subsidiary that is not a Subsidiary Loan Party, 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;
(miii) (i) Guarantees by any Restricted Subsidiary that is not a Loan Party of Indebtedness of Property-Level Parent and its Restricted Subsidiaries to the extent consisting extent, in the case of clauses (ii) and (iii), such Guarantees that do not provide any greater recourse to the applicable Loan Party are permitted by Section 6.04 (other than the Mortgage Recourse Carve-OutsSection 6.04(k)(i)); provided that such Guarantees are entered into by any Borrower or any other Loan Party under this Section 6.01(k) of any other Indebtedness of a person that is subordinated to the Secured Obligations shall be expressly subordinated to the Secured Obligations on terms not materially less favorable to the Lenders as those contained in the ordinary course subordination of such other Indebtedness to the Secured Obligations; provided further that no Guarantee by Parent or any of its Restricted Subsidiaries of any Subordinated Indebtedness or the Indebtedness described in Section 6.01(j) shall be permitted unless Parent or the applicable Restricted Subsidiaries, as the case may be, shall have also provided a Guarantee of the Secured 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;
(l) Indebtedness arising from agreements of any Borrower or any Restricted Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations (including without limitation earn-out obligations), in each case, incurred or assumed in connection with the acquisition or Disposition of any business and or assets (iiincluding Equity Interests of Restricted Subsidiaries) of any Borrower or any Restricted Subsidiary permitted by Section 6.04 or Section 6.05, other than Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties in respect of Indebtedness otherwise permitted hereunderincurred by any person acquiring all or any portion of such business or assets for the purpose of financing such acquisition; provided, that the payment of such Indebtedness shall be restricted as set forth in Section 6.09;
(m) [reserved];
(n) Indebtedness representing deferred compensation to current consisting of (i) the financing of insurance premiums or former directors(ii) take-or-pay obligations contained in supply arrangements, officersin each case, 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;
(oi) additional Indebtedness incurred of any Borrower or any Restricted Subsidiary and (ii) any Permitted Refinancing Indebtedness in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance of the foregoing, no Property-Level Subsidiary respect thereof; provided that (I) such Indebtedness shall create, incur, assume or suffer to exist any be (1) Subordinated Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.constitutes Permitted Debt Securities or
Appears in 1 contract
Sources: Credit Agreement (Ollie's Bargain Outlet Holdings, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, or (ii) any Mortgage provided that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers’ compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of a Loan Party the Borrower to any other Loan Party and/or Subsidiary and of any Subsidiary to the Borrower or Controlled JV any other Subsidiary, and provided that (i) Indebtedness of 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 Subsidiary Loan Party to the Loan Parties shall be contractually 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 Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall be subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, bid bonds, appeal bonds, surety bonds, financial assurances and completion guarantees and similar current obligations to a trade creditor incurred obligations, in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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, each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(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 the ordinary course of business, provided that (x) such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days of its incurrence and (y) such Indebtedness in respect of workers compensation claims, health, disability credit 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 claimspurchase 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 (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by 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) any Subsidiary or of this Section 6.01 and the Remaining Present Value of outstanding leases permitted under Section 6.03), would not exceed the greater of $40 million and 4.0% of Consolidated JV Subsidiary Total Assets as of the Borrower that is not a Loan Party in end of the ordinary course fiscal quarter immediately prior to the date of business not more than 180 days before or after the such acquisition, constructionmerger or consolidation, repairsuch assumption or such incurrence, replacementas applicable, leasefor which financial statements have been delivered pursuant to Section 5.04;
(i) Capital Lease Obligations, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 270 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisitionacquisition or improvement, constructionand any Permitted Refinancing Indebtedness in respect thereof, repairin an aggregate principal amount that at the time of, replacementand after giving effect to, leasethe incurrence thereof (together with Indebtedness outstanding pursuant to paragraph (h) of this Section 6.01, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement this paragraph (i) and the Remaining Present Value of leases permitted under Section 6.03) would not exceed the greater of $40 million and 4.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such fixed incurrence for which financial statements have been delivered pursuant to Section 5.04;
(j) Capital Lease Obligations incurred by the Borrower or capital asset; provided 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 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 the Senior Subordinated Notes in an aggregate principal amount that is not in excess of $275 million and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(m) Guarantees (i) by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in paragraph (1), 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 Note Indenture, (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 7.02(i)(i6.04(b), (iv) shall be without recourse to by any Loan Parties Foreign Subsidiary of Indebtedness of another Foreign Subsidiary, and (iiv) any Loan Party in an aggregate amount at any time not to exceed $10,000,000, by the Borrower of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business not more than 180 days before on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(a) or after (s); provided that Guarantees by 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 order Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement other Indebtedness of such fixed or capital assetperson shall be expressly subordinated to the Obligations to the same extent as the Guarantee of the Senior Subordinated Notes is under the Senior Subordinated Note Indenture;
(jn) Indebtedness in respect arising from agreements of Swap Contracts designed to hedge against the Borrower’s 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 disposition of any business, assets or a Subsidiary’s exposure , 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) letters of credit or bank guarantees (other than Letters of Credit issued pursuant to interest ratesSection 2.05) having an aggregate face amount not in excess of $15 million;
(p) Indebtedness supported by a Letter of Credit, foreign exchange rates in a principal amount not in excess of the stated amount of such Letter of Credit;
(q) Indebtedness consisting of (x) the financing of insurance premiums or commodities pricing risks incurred (y) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business business;
(r) unsecured Indebtedness consisting of Permitted Debt Securities and not for speculative purposes and guarantees Permitted Refinancing Indebtedness in respect thereof;
(ks) Indebtedness incurred under the ERF Program of Foreign Subsidiaries 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)50 million outstanding at any time;
(lt) without duplication of any other Indebtedness, all premiums premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties additional or contingent interest on obligations described in paragraphs (a) through (s) above and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunderparagraph (u) below;
(mu) (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-Outsin connection with Permitted Receivables Financings; provided that such Guarantees the proceeds thereof are entered into applied in the ordinary course of business accordance with Section 2.11(b);
(v) Cash Management Obligations and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties other Indebtedness in respect of Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current or former directorsnetting services, officersoverdraft protection and similar arrangements, employeesin each case, members of management, managers, in connection with cash management and consultants of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries in the ordinary course of businessdeposit accounts; and
(ow) 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-OutsJunior Capital.
Appears in 1 contract
Sources: Credit Agreement (PQ Systems INC)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the followingor issue any Preferred Stock except:
(a) Indebtedness arising under the Loans and ObligationsLoan Documents (including any Refinancing Facility);
(b) Mortgage Indebtedness as arising under the Priority Lien Notes Indenture in an aggregate principal amount at any one time outstanding not to exceed $194,000,000 (less (x) the aggregate amount of mandatory prepayments or purchases of such Indebtedness made thereunder from time to time and (y) voluntary repayments 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, Term Loans made with Internally Generated Cash) and any Permitted Refinancings thereofrelated guarantees thereto);
(c) Monthly payment, installment any Permitted Refinancing Indebtedness of Indebtedness permitted under Section 7.03(b) or financing plans for the payment of insurance policy premiumsIndebtedness subsequently incurred under this Section 7.03(c);
(d) Guarantees extended by Wilpinjong Opco or any of its Subsidiaries in respect of Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Investment or Disposition otherwise permitted hereunder and Indebtedness comprising guarantees, letters of credit, bank guaranties, surety bonds, performance bonds Wilpinjong Opco or similar instruments securing the performance pursuant to any such agreement, or (ii) any Mortgage Indebtedness incurred to 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofSubsidiary;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) Indebtedness (including Capitalized Lease Obligations) Cash Management 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 Hedging Agreements entered into by Controlled JV Wilpinjong Opco or any of its Subsidiaries or Subsidiaries that do incurred in the ordinary course of business, consistent with prudent business practice, and not constitute Loan Parties in respect of Indebtedness otherwise permitted hereunderfor speculative purposes;
(ni) Indebtedness representing deferred compensation of any Borrower or any Subsidiary owed to current any Borrower or former directorsany Subsidiary and (ii) Disqualified Equity Interests or Preferred Stock of a Subsidiary issued to the Main Borrower or another Subsidiary; provided that, officersany such Indebtedness extended by a Loan Party or any non-Loan Party to a Loan Party must be subordinated to the Secured Obligations on customary terms; provided further, employeesIndebtedness extended by any Loan Party to any non-Loan Party shall be permitted so long as such Indebtedness is evidenced by a promissory note, members in form and substance reasonably satisfactory to the Administrative Agent (it being acknowledged that the form of management, managersintercompany note attached hereto as Exhibit F is satisfactory to the Administrative Agent), and consultants such promissory note shall be pledged to the Priority Collateral Trustee as Collateral (such debt, “Pledged Intercompany Indebtedness”);
(g) Indebtedness arising as a result of a Lien on the Collateral securing Junior Lien Indebtedness permitted under Section 7.01(r);
(h) Preferred Stock of a Subsidiary issued to the Main Borrower or a Subsidiary; provided that any subsequent transfer of any Capital Stock or any other event which results in any such Subsidiary ceasing to be a Subsidiary or any other subsequent transfer or any such Preferred Stock (except to Main Borrower or a Subsidiary) shall be deemed, in each case, to be an issue of Preferred Stock;
(i) [reserved];
(j) [reserved];
(k) Indebtedness of Wilpinjong Opco or any of its Subsidiaries incurred and the proceeds of which are used solely to finance the purchase, lease or acquisition of any Relevant Equipment and that is secured by such Relevant Equipment, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such equipment or secured by a Lien on any such equipment before the acquisition thereof; provided that the aggregate principal amount at any time outstanding of any Indebtedness incurred pursuant to this clause, including all Permitted Refinancing Notes incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause, may not exceed the greater of (a) $20,000,000 or (b) 4.0% of Consolidated Net Tangible Assets; provided further that the ratio of Indebtedness incurred pursuant to this clause to the fair market value of the applicable Relevant Equipment shall at no time exceed 75%;
(l) [reserved];
(m) [reserved];
(i) Indebtedness of Loan Parties and/or constituting (A) unsecured senior or senior subordinated debt securities, (B) debt securities that are secured by a Lien ranking junior to the Liens securing the Secured Obligations or (C) debt securities that are secured by a Lien ranking pari passu with the Liens securing the Secured Obligations in an aggregate principal amount, which Refinances some or all of the Term Loans incurred hereunder and has an aggregate principal amount which does not exceed the principal amount of the Term Loans hereunder which are being Refinanced except with respect to any Permitted Refinancing Increase (such Indebtedness, the “Refinancing Notes”); provided that (1) with respect to Refinancing Notes incurred under clause (n)(C) hereof, (x) the final stated maturity of such Refinancing Notes shall not be sooner than the Maturity Date, (y) the weighted average life to maturity of such Refinancing Notes is greater than or equal to the weighted average life to maturity of the Term Loans and any other Refinancing Facilities, and (z) such Refinancing Notes shall not be subject to any mandatory prepayment, repurchase or redemption provisions, unless the prepayment, repurchase or redemption of such Indebtedness is accompanied by the prepayment of a pro rata portion of the outstanding principal of the Term Loans hereunder pursuant to Section 2.05 hereof, (2) with respect to Refinancing Notes incurred under clause (n)(A) or (n)(B) hereof, (x) the final stated maturity of such Refinancing Notes shall not be sooner than 180 days after the Maturity Date , (y) the weighted average life to maturity of such Refinancing Notes is greater than the weighted average life to maturity of the Term Loans and any other Refinancing Facilities and (z) such Refinancing Notes does not have scheduled amortization or payments of principal and shall not be subject to mandatory redemption, repurchase, prepayment or sinking fund obligations (other than pursuant to customary asset sale, event of loss, excess cash flow (provided that such excess cash flow sweep does not require the application of any excess cash flow that would otherwise be required to be applied to the prepayment of the Term Loans pursuant to Section 2.05(g) hereof), change of control prepayment provisions (provided that such cash sweeps do not require the application of any excess cash flow that would otherwise be required to be applied to the prepayment of the Term Loans pursuant to Section 2.05(g) hereof) and a customary acceleration right after an event of default), in each case prior to the Maturity Date at the time such Refinancing Notes is incurred, (3) no Default or Event of Default shall have occurred or be continuing at the time of occurrence of such Refinancing Notes or would result therefrom, (4) to the extent secured, (x) such Indebtedness shall not be secured by a Lien on any asset of any Borrower or its Subsidiaries that does not also secure the Secured Obligations and (y) such Indebtedness shall be subject to the Collateral Trust Agreement, and (5) to the extent guaranteed, such Indebtedness shall not be guaranteed by a Subsidiary that is not a Guarantor of the Secured Obligations;
(o) [reserved];
(p) [reserved];
(q) Indebtedness of Wilpinjong Opco or any of their respective its Subsidiary not otherwise permitted hereunder in an aggregate principal amount at any time outstanding not to exceed the greater of (i) $5,000,000 and (ii) 1% of Consolidated Net Tangible Assets.
(r) Indebtedness of Wilpinjong Opco or any Subsidiary in connection with one or more standby or trade-related letters of credit, performance bonds, bid bonds, appeal bonds, bankers acceptances, insurance obligations, reclamation obligations, bank guarantees, surety bonds, completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by a Subsidiary solely with respect to the mining operations of Wilpinjong Opco and its Subsidiaries, in each case, in the ordinary course of business or pursuant to self-insurance obligations and not in connection with the borrowing of money or the obtaining of advances;
(s) Indebtedness arising from agreements of Wilpinjong Opco or any Subsidiaries and Controlled JV Subsidiaries providing for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or any Subsidiary;
(t) 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; and
(ou) Indebtedness incurred of Wilpinjong Opco or any of its Subsidiaries consisting of (i) the financing of insurance premiums solely with respect to the mining operations of Wilpinjong Opco or any of its Subsidiaries or (ii) take-or-pay obligations contained 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 supply or suffer to exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outsarrangements.
Appears in 1 contract
Indebtedness. Create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and ObligationsIndebtedness of any Loan Party pursuant to any Loan Document;
(b) Mortgage Indebtedness as of the date hereof Borrower to any Subsidiary 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 (i) any 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 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 Wholly Owned Subsidiary Guarantor to the Borrower or any other Subsidiary; provided, 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and Indebtedness owing by any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other the Insurance Subsidiary or the Litigation Subsidiary shall be subordinated to the obligations of such Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of under the Loan Documents in 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 prior repayment in full of the Obligations on terms manner reasonably satisfactory to the Administrative Agent;
(fc) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor Guarantee Obligations incurred in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party the Borrower or any of its Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(d) Indebtedness outstanding on the Restatement Effective Date and listed on Schedule 7.2(d) and any refinancings, refundings, renewals or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or createdextensions thereof (without increasing, or relating shortening the maturity of, the principal amount thereof);
(e) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in an aggregate principal amount not to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsexceed $15,000,000 at any one time outstanding;
(i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary of the Borrower that is and Holdings in respect of the Senior Subordinated Notes in an aggregate principal amount not a Loan Party in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 exceed $275,000,000 and (ii) Guarantee Obligations of any Loan Party Subsidiary Guarantor in an aggregate amount at any time respect of such Indebtedness, provided that such Guarantee Obligations are subordinated to the same extent as the obligations of the Borrower or Holdings in respect of the Senior Subordinated Notes;
(g) Assumed Indebtedness incurred pursuant to Permitted Acquisitions;
(h) Guarantee Obligations of the Borrower in respect of Indebtedness of franchisees not to exceed $10,000,000, 75,000,000 at any one time outstanding;
(i) Guarantee Obligations incurred in the ordinary course of business not more than 180 days before or after by Holdings of Capital Lease Obligations in respect of real property of 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 Wholly Owned Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;Guarantor; and
(j) additional Indebtedness in respect of Swap Contracts designed to hedge against the Borrower’s Borrower 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 its Subsidiaries in an aggregate principal amount at any time (for the Borrower and all Subsidiaries) not to exceed $100,000,000 (or such other increased amount as may be approved by the Required Lenders);
(l) without duplication of 25,000,000 at 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-Outsone time outstanding.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, or (ii) any Mortgage in each case in the ordinary course of business; provided, that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers’ compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of the Borrower to Holdings (prior to a Loan Party Borrower Qualified IPO) or any Subsidiary and of any Subsidiary to Holdings (prior to a Borrower Qualified IPO), the Borrower or any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary; provided, that, other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Holdings and the subsidiaries to finance working capital needs of the subsidiaries, (i) Indebtedness of 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 Subsidiary Loan Party owing to the Loan Parties shall be contractually subject to Section 6.04(b) and (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 “Subordinated Intercompany Debt”) shall, if legally permissible, be subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness (including obligations in respect of Banking Services;
(gletters of credit and bank guarantees) trade payables in respect of performance, bid, appeal and similar current obligations to a trade creditor incurred surety bonds and completion guarantees provided by the Borrower or any of its Subsidiaries in the ordinary course of business and not evidenced or consistent with past practice or industry practice;
(g) Indebtedness arising from the honoring by a notebank 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 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;
(h) (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 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, 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;
(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, 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 $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;
(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;
(l) Indebtedness of the Borrower pursuant to (i) the Senior Unsecured Notes in an aggregate principal amount that is not in excess of $2,250.0 million (plus any interest paid by increases to principal), (ii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of $900.0 million, and (iii) 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), so long as the Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof is subordinated on substantially the same terms as set forth in the Senior Subordinated Notes Indenture with respect to the Senior Subordinated Notes, (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 (prior to a Borrower Qualified IPO) 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 its 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 6.04(b); provided, that Guarantees by the Borrower or Controlled JV Subsidiaries 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, 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, bankers’ acceptances, 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 created(ii) take-or-pay obligations contained in supply arrangements, or relating to obligations or liability incurredin each case, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) other 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary Loan Party so long as (A) no Default or Controlled JV SubsidiaryEvent of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to the issuance, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade incurrence or improvement assumption of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i) Indebtedness, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be without recourse greater than 4.25 to any Loan Parties 1.00 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness of Subsidiaries that are not Loan Party Parties in an aggregate amount not to exceed at any time not to exceed outstanding the greater of $10,000,000, incurred 330 million and 3.0% of Consolidated Total Assets;
(t) unsecured Indebtedness in respect of obligations of the ordinary course of business not more than 180 days before or after 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 to pay the deferred purchase price of goods or Controlled JV Subsidiaryservices or progress payments in connection with such goods and services; provided, that such obligations are incurred in order to finance connection with open accounts extended by suppliers on customary trade terms (which require that all such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement payments be made within 60 days after the incurrence of such fixed or capital asset;
(jthe related obligations) 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 thereofin connection with the borrowing of money or any Swap Agreements;
(ku) Indebtedness representing deferred compensation to employees and directors of the Borrower or any Subsidiary incurred under (i) in the ERF Program ordinary course of business or (ii) in an aggregate amount at any time not to exceed $100,000,000 connection with the Transactions (including as a result of the cancellation or such vesting of outstanding options and other increased amount as may be approved by the Required Lendersequity-based awards in connection therewith);
(lv) without duplication 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 IndebtednessInvestment 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 $50.0 million in 2007, $75.0 million in either 2008 or 2009, and 40% of the amount of Permitted Business Acquisitions in each subsequent 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 and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in paragraphs (ma) through (ibb) 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 businessabove; and
(odd) Indebtedness of the Borrower existing on the Closing Date pursuant to the Existing Senior Notes and any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness. 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 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 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-Outsconnection with such refinancing.
Appears in 1 contract
Sources: Credit Agreement (NRT Settlement Services of Missouri LLC)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01) and (ii) any Permitted Refinancing Indebtedness in respect thereof (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage (i) Indebtedness as of created hereunder (including pursuant to Section 2.21) and under the date hereof other Loan Documents and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and (ii) any Permitted Refinancings Refinancing Indebtedness in respect thereof;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
self-insurance and Indebtedness and other obligations owed to (g) trade payables and similar current including 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 norm;
(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 Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated 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 Agent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety 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 norm, including those incurred to secure health, safety and environmental obligations in the ordinary course of business or consistent with past practice or industry norm;
(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 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 reimbursement-type obligations regarding workers compensation claimsSection 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 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset other Indebtedness incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset; provided arising from any Sale and Lease- Back Transaction that any Indebtedness incurred is permitted under this Section 7.02(i)(i) shall be without recourse to any Loan Parties 6.03 and (ii) any Loan Party Permitted Refinancing Indebtedness in respect of the foregoing;
(i) Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount at 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 time 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 exceed $10,000,000its 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 not more 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 180 days before or after Section 6.04(v)); provided, that Guarantees by 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 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 Controlled JV Subsidiaryany Subsidiary providing for indemnification, adjustment of purchase or acquisition price, deferred purchase price or similar obligations (including earn-outs), in order to finance such acquisitioneach case, constructionincurred or assumed in connection with the Transactions, repairany Permitted Business Acquisition, replacementany New Projects, leaseother Investments or the acquisition or disposition of any business, expansion, development, installation, relocation, renewal, maintenance, upgrade assets or improvement of such fixed or capital asseta Subsidiary not prohibited by this Agreement;
(jo) Indebtedness in respect of Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest ratessupport performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness), foreign exchange rates or commodities pricing risks incurred in each case, in the ordinary course of business and not for speculative purposes and guarantees thereofor consistent with past practice or industry norm;
(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) (ip) Guarantees by a Loan Party the Borrower or any Subsidiary of Indebtedness under customer financing lines 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 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) Guarantees 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 Controlled JV 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 do are not constitute 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 of Indebtedness otherwise permitted hereunderthereof;
(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
(oi) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance or consistent with past practice or industry norm in respect 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.obligations of the
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01) and (ii) any Permitted Refinancing Indebtedness in respect thereof (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage (i) Indebtedness as of created hereunder (including pursuant to Section 2.21) and under the date hereof other Loan Documents and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and (ii) any Permitted Refinancings Refinancing Indebtedness in respect thereof;
(c) Monthly paymentIndebtedness of the Borrower or any Subsidiary pursuant to Hedging Agreements entered into for non-speculative purposes, installment or financing plans Commercial Agreements entered into in the ordinary course of business and for the payment of insurance policy premiumsnon-speculative purposes and Supply Chain Financings;
(di) Indebtedness arising from (i) any agreement providing for indemnificationconstituting reimbursement obligations with respect to letters of credit, adjustment of purchase price bankers acceptances and bank guarantees or similar credit transactions issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers’ compensation claims, health, disability or other 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 contingent earn-out obligations) incurred in connection reimbursement obligations with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect to letters of credit, bank guarantiesguarantees, warehouse receipts and similar instruments) in respect of performance, bid, appeal and surety bonds, performance bonds and completion guarantees and similar obligations provided by the Borrower or similar instruments securing any Subsidiary in the performance pursuant to such agreementordinary course of business or consistent with past practice or industry norm, or (ii) issued to any Mortgage Indebtedness incurred to 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 Governmental Authority as of the date of entry into the agreement for required by such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofGovernmental Authority;
(e) Indebtedness of a the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, that (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 its Subsidiaries) Indebtedness owed by any Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 incurred pursuant to this Section 6.01(e) shall be contractually subordinated in right of payment to the prior repayment Loan Obligations under this Agreement on subordination terms described in full the intercompany note substantially in the form of the Obligations 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 Banking Services;
(g) performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees, trade payables 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 current obligations to a trade creditor incurred obligations, in each case provided in the ordinary course of business or consistent with past practice or industry norm, including those incurred to secure health, safety and not evidenced environmental obligations in the ordinary course of business or consistent with past practice or industry norm or issued to any Governmental Authority as required by a notesuch Governmental Authority;
(hg) 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;
(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 Loan Party 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 Subsidiaries), to the extent such net cash proceeds do not constitute Excluded Contributions or Controlled JV Subsidiaries 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, 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, bankers’ acceptances, warehouse receipts or similar instruments issued or createdto support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness), or relating to obligations or liability incurredin each case, in the ordinary course of business, including in respect of workers compensation claims, health, disability business or other employee benefits consistent with past practice or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsindustry norm;
(ip) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred Guarantees by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 under customer financing lines 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 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) Guarantees any Permitted Refinancing Indebtedness in respect thereof;
(r) (i) Indebtedness secured by Controlled JV 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 do are not constitute 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 of Indebtedness otherwise permitted hereunderthereof;
(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
(oi) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance or consistent with past practice or industry norm in respect of obligations of the foregoing, no Property-Level Borrower or any Subsidiary shall create, incur, assume to pay the deferred purchase price of goods or suffer to exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.services or progress payments in connection with suc
Appears in 1 contract
Sources: Revolving Credit Agreement (Phoenix Education Partners, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer cause to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing on the Loans Closing Date (provided that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $3,000,000 individually or in excess of $10,000,000 in the aggregate shall be set forth on Schedule 6.01), and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Parent Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.19) and under 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 thereofother Loan Documents;
(c) Monthly payment, installment Indebtedness of the Parent Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Parent Borrower or self-insurance any Subsidiary, pursuant to reimbursement or indemnification obligations to such person, in each case in the ordinary course of business;
(e) Indebtedness of the Parent Borrower to any Subsidiary and of any Subsidiary to the Parent 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) such Indebtedness shall be subordinated to the 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 on other subordination terms reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders) and the Borrowers;
(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, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) Indebtedness arising from the honoring by a bank or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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 entered into in the ordinary course of business;
(i) Indebtedness of a Subsidiary acquired after the Closing Date (including Capitalized Lease Obligationsany Exempted Subsidiary at such time as it becomes a Subsidiary) or a person merged, amalgamated or consolidated with the Parent Borrower or any Subsidiary after the Closing Date and Indebtedness otherwise assumed by the Parent Borrower or any Subsidiary in connection with the acquisition of assets or Equity Interests (including a Permitted Business Acquisition, merger, amalgamation or consolidation), where such acquisition, merger, amalgamation or consolidation is not prohibited by this Agreement and such Indebtedness was not incurred by in contemplation of such acquisition, merger, amalgamation or consolidation and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(i) (A) Indebtedness in respect of retail store lease obligations and (B) Capitalized Lease Obligations and other Indebtedness incurred by the Parent Borrower or any Subsidiary prior to or Consolidated JV Subsidiary of the Borrower that is not a Loan Party in the ordinary course of business not more than 180 within 270 days before or after the acquisition, lease, construction, installation, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade replacement or improvement of a fixed the respective property (real or capital asset incurred by personal, and whether through the Borrower direct purchase of property or the Equity Interest of any Subsidiary or Controlled JV Subsidiary, person owning such property) permitted under this Agreement in order to finance such acquisition, lease, construction, installation, repair, replacementreplacement or improvement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement in an aggregate outstanding principal amount that immediately after giving effect to the incurrence of such fixed or capital asset; provided that 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)(B), would not exceed the greater of (x) $75,000,000 and (y) 1.50% of Consolidated Total Assets;
(i) Capitalized Lease Obligations and any other Indebtedness incurred under by the Parent Borrower or any Subsidiary arising from any Sale and Lease-Back Transaction, together with the aggregate principal amount of any other Indebtedness outstanding pursuant to this Section 7.02(i)(i6.01(j), would not exceed the greater of (x) shall be without recourse to any Loan Parties $100,000,000 and (y) 2.00% of Consolidated Total Assets 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 after 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 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) Permitted Refinancing 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 thereofforegoing;
(k) Indebtedness incurred under of the ERF Program Parent Borrower or any Subsidiary, 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(k), would not exceed the greater of (x) $50,000,000 and (y) 1.00% of Consolidated Total Assets; provided, further, that any such Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Party, together with any Indebtedness incurred by a Subsidiary that is not a Subsidiary Loan Party pursuant to Section 6.01(x) or 6.01(aa), does not exceed at any time not to exceed outstanding the greater of (x) $100,000,000 and (or such other increased amount as may be approved by the Required Lenders)y) 2.00% of Consolidated Total Assets;
(li) without duplication Indebtedness of the Parent Borrower or any Subsidiary in an aggregate outstanding principal amount, together with the aggregate principal amount of any other Indebtedness, all premiums (if anyIndebtedness outstanding pursuant to this Section 6.01(l), interest not greater than 100% of the amount of net cash proceeds received by the Parent Borrower from (including post-petition interest 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 payment sale by a Parent Entity of its Qualified Equity Interests or a contribution to its common equity (in kind interesteach case of (x) and (y), accretion other than proceeds from the sale of Equity Interests to, or amortization contributions from, the Parent Borrower or any of original issue discountits Subsidiaries), feesto the extent such net cash proceeds do not constitute Excluded Contributions or increase the Cumulative Credit, expenses and charges with (ii) any Permitted Refinancing Indebtedness in respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunderthereof;
(m) Guarantees (i) by the Parent Borrower or any Subsidiary Loan Party of any Indebtedness of the Parent Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (ii) by the Parent 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 and (iii) by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of Property-Level Subsidiaries to the extent consisting of Guarantees another Subsidiary that do is not provide any greater recourse to the applicable a Subsidiary Loan Party than the Mortgage Recourse Carve-OutsParty; provided that such Guarantees are entered into in the ordinary course of business and (ii) Guarantees by Controlled JV Subsidiaries the Parent Borrower or Subsidiaries any Subsidiary Loan Party under this Section 6.01(m) of any other Indebtedness of a person that do not constitute Loan Parties in respect is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness otherwise permitted hereunderis subordinated;
(n) Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants arising from agreements of the Loan Parties and/or Parent Borrower or any Subsidiary providing for indemnification, adjustment of their respective Subsidiaries purchase or acquisition price or similar obligations (including earn-outs), in each case, incurred or assumed in connection with any Permitted Business Acquisition, other Investments or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement or a transaction consummated prior to the Closing Date;
(o) Indebtedness in respect of letters of credit, bank guarantees, warehouse receipts or similar instruments issued to support performance obligations and Controlled JV Subsidiaries trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business; and;
(oi) Indebtedness of the Parent Borrower and the Subsidiary Loan Parties in an aggregate principal amount not to exceed at the time of incurrence the Incremental Amount available at such time; provided that (A) the incurrence of any Indebtedness pursuant to this clause (p)(i) shall be subject to the requirements applicable to Incremental Term Loans (with all references therein to “Incremental Term Loans” deemed a reference instead to “Pari Debt”) set forth in Sections 2.19(b)(iii) (other than with respect to bona fide revolving credit facilities), (iv) (other than with respect to bona fide revolving credit facilities), (vi), (vii) (other than with respect to bona fide revolving credit facilities) and (viii), (B) the incurrence of any Indebtedness for borrowed money in the form of (x) term loans, (y) bonds or (z) revolving credit facilities in an aggregate committed amount in excess of $250,000,000, in each case incurred within twenty-four (24) months of the Closing Date that are secured by Liens on the Collateral that are Other First Liens shall be subject to the MFN Protection (with all references therein to “Incremental Term Loans” deemed a reference instead to “Pari Debt”) and (C)(i) in the case of such Indebtedness secured by Liens on the Collateral that are (or are intended to be) junior in priority to the Liens on the Collateral securing the Obligations, such Liens shall be subject to a Permitted Junior Intercreditor Agreement and (ii) in the case of such Indebtedness secured by Liens on the Collateral that are (or are intended to be) pari passu with the Liens on the Collateral securing the Obligations, such Liens shall be subject to a Permitted Pari Passu Intercreditor Agreement; and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(q) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingParent 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;
(r) Indebtedness representing deferred compensation to employees, no Propertyconsultants or independent contractors of the Parent Borrower (or, to the extent such work is done for the Parent Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary incurred in the ordinary course of business;
(s) obligations in respect of Cash Management Agreements incurred in the ordinary course of business;
(t) [reserved];
(u) Indebtedness issued by the Parent Borrower or any Subsidiary to current or former officers, directors and employees thereof or any Parent Entity, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Parent Borrower or any Parent Entity permitted by Section 6.06;
(v) Indebtedness of the Parent 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-Level insurance arrangements) of the Parent Borrower and its Subsidiaries;
(w) 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;
(x) Indebtedness of Subsidiaries that are not Subsidiary shall createLoan Parties in an aggregate principal amount outstanding that, incurimmediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, assume or suffer together with the aggregate principal amount of any other Indebtedness outstanding pursuant to exist this Section 6.01(x), would not exceed the greater of (x) $50,000,000 and (y) 1.00% of Consolidated Total Assets on a Pro Forma Basis for the then most recently ended Test Period; provided, further, that any such Indebtedness, together with any Indebtedness incurred by a Subsidiary that is recourse not a Subsidiary Loan Party pursuant to Section 6.01(k) or 6.01(aa), does not exceed at any Loan Party, other than Mortgage Recourse Carve-Outs.time outstanding the greater of
Appears in 1 contract
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the following:
(exclusive of trade debt) except in respect of (a) the Loans and Obligations;
; (b) Mortgage Indebtedness as Capitalized Lease Obligations consisting of the date hereof and listed on Schedule 5.07(b)Capital Lease of the wet sand plant located in ▇▇▇▇▇▇ County, Wisconsin plus additional Capitalized Lease Obligations in an aggregate amount at any renewals, amendments, modifications or extensions thereof that do time outstanding not increase the principal amount thereof, and any Permitted Refinancings thereof;
to exceed $5,000,000; (c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
Permitted Purchase Money Indebtedness; (d) Indebtedness arising from under any Hedge so long as such Indebtedness (except to the extent constituting Hedge Liabilities) is unsecured; (e) Indebtedness owing to any other Credit Party or Subsidiary thereof so long as any such Indebtedness owing to any Person that is not a Credit Party is subordinated pursuant to an agreement reasonably satisfactory to Agent; (f) guarantees permitted under Section 7.3; (g) to the extent not otherwise described in this Section 7.8, Indebtedness set forth on Schedule 7.8 and any Refinancing Indebtedness in respect thereof; (h) Indebtedness in respect of workers’ compensation claims, property casualty or liability insurance, and self-insurance obligations, in each case in the ordinary course of business; (i) 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, (j) Indebtedness of the Parent Guarantor or any agreement 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 price, earnouts or similar obligations (including contingent earn-out obligations) , in each case, incurred or assumed in connection with any Investment or a Disposition permitted hereunder and under Section 7.1(b) or a Permitted Acquisition, (l) Indebtedness comprising guaranteesof the Parent Guarantor or any Restricted Subsidiary in connection with performance bonds, letters bid bonds, appeal bonds, bankers acceptances, insurance obligations, workers’ compensation claims, health or other types of credit, bank guarantiessocial security benefits, surety bonds, performance completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Parent Guarantor or similar instruments securing the performance pursuant to such agreement, or (ii) any Mortgage Indebtedness incurred to 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Restricted Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created, or relating pursuant to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance obligations and in each case not in connection with the borrowing of money 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 the obtaining of the Borrower that is not a Loan Party in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 advances and (iim) any Loan Party unsecured Indebtedness 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 after 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 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 50,000,000 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 outstanding in the ordinary course of business aggregate, so long as such Indebtedness is on terms and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties conditions satisfactory to Agent 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-Outsits Permitted Discretion.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01), and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage (i) Indebtedness as of created hereunder (including pursuant to Section 2.21 (whether prior to, on or after the date hereof Ninth Incremental Assumption and listed on Schedule 5.07(bAmendment Agreement Effective Date), any renewals, amendments, modifications or extensions thereof that do not increase ) and under the principal amount thereofother Loan Documents, and (ii) any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated 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 Agent 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 Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, replacementreplacement or improvement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement in an aggregate principal amount that immediately after giving effect to the incurrence of such fixed or capital asset; provided that 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 this Section 7.02(i)(i) shall be without recourse to any Loan Parties 6.03, and (ii) any Loan Party Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount at 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 time 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 exceed $10,000,000its 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 not more 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 180 days before or after Section 6.04(v)); provided, that Guarantees by 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 order Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement other Indebtedness of such fixed or capital assetperson shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(jn) 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 Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred 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 $1,246,000,000 and not for speculative purposes and guarantees (ii) any Permitted Refinancing Indebtedness in respect thereof;
(ki) 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 under by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the ERF Program 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 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)respect thereof;
(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;
(mr) (i) Guarantees Indebtedness secured by a Loan Party of Indebtedness of Property-Level Subsidiaries Liens on Collateral that are Junior Liens so long as immediately after giving effect to the extent consisting incurrence of Guarantees that do such Indebtedness and the use of proceeds thereof, the Net Secured Leverage Ratio on a Pro Forma Basis is not provide any greater recourse than 3.60 to the applicable Loan Party than the Mortgage Recourse Carve-Outs1.00; provided that (x) the aggregate principal amount of Indebtedness outstanding under this clause (r)(i) at such Guarantees 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 entered into in incurred by Subsidiaries other than the ordinary course Subsidiary Loan Parties, the greater of business $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) Guarantees 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 Controlled JV 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 or 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 do are not constitute 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 of Indebtedness otherwise permitted hereunderthereof;
(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
(ou) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, no Property-Level 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 createbe subject to the last paragraph of Section 6.02, incurand (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, assume incurred on behalf of, or suffer representing Guarantees of Indebtedness of, joint ventures in an aggregate principal amount that, immediately after giving effect to exist the incurrence of such Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness that is recourse 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 Loan Party, other than Mortgage Recourse Carve-Outs.Permitted Refinancing Indebtedness in respect thereof;
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Restricted Subsidiary of the Borrower);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment or financing plans for Indebtedness of the payment of insurance policy premiumsBorrower and the Restricted Subsidiaries pursuant to Permitted Swap Agreements;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or any Restricted Subsidiary of the Borrower, pursuant to reimbursement or indemnification obligations to such agreementPerson; provided that upon the incurrence of Indebtedness with respect to reimbursement obligations regarding workers’ compensation claims, or (ii) any Mortgage Indebtedness incurred to 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) unsecured Indebtedness of a the Borrower or any Subsidiary Loan Party owing to any other Loan Party and/or (the “Subordinated Intercompany Debt”), provided, that such Indebtedness is not held, assigned, transferred, negotiated or pledged to any Subsidiary or Controlled JV SubsidiaryPerson other than a Loan Party, and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; provided provided, further, that any such Indebtedness of a Loan Party to a Subsidiary or Controlled JV Subsidiary that is not a Loan Party for borrowed money shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, warranty bonds, bid bonds, appeal bonds, surety bonds, labor bonds and completion or performance guarantees and similar current obligations to a trade creditor incurred obligations, in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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, each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business 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;
(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 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 workers compensation claims, health, disability credit 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 claimspurchase 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 (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by 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 Subsidiary or 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 JV Subsidiary 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 not applied to prepay the Loans, (iv) no such secured junior Indebtedness shall provide for a Loan Party in final maturity date, scheduled amortization or any other scheduled repayment, mandatory redemption or sinking fund obligation prior to the ordinary course Maturity Date, (v) the incurrence of business not more than 180 days before such senior secured junior Indebtedness is permitted by the Revolving Credit Facility, and (vi) no Default or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade Event of Default then exists or improvement of a fixed or capital asset incurred would result therefrom;
(k) Guarantees (i) by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement Loan Party of such fixed or capital asset; provided that any Indebtedness of the Borrower or any Subsidiary Loan Party expressly permitted to be incurred under this Section 7.02(i)(i) shall be without recourse to any Loan Parties and 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 an aggregate amount at each case, incurred or assumed in connection with the disposition of any time not to exceed $10,000,000business, 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 business or with respect to trade payables and (y) the aggregate amount available to be drawn under all such Letters of Credit shall not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement exceed $100.0 million.
(n) Indebtedness consisting of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetPermitted Junior Debt;
(jo) Guarantees of Indebtedness in respect of Swap Contracts designed Unrestricted Subsidiaries and other Persons that are not Loan Parties or Restricted Subsidiaries 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 thereofextent that Investments are permitted under Section 6.04(g);
(kp) 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 ERF Program Revolving Credit Agreement and Indebtedness pursuant to any Secured Swap Agreements (as defined in an 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 exceed $100,000,000 (or such other increased amount incurrence, the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenants, as may be approved by computed as of the Required Lenders)date of the incurrence of such Indebtedness;
(ls) without duplication of any other Indebtedness, Indebtedness incurred under the NewCo Credit Agreement; provided that such Indebtedness is subject at all premiums times to the Intercreditor Agreement; and
(t) all premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in paragraphs (ma) through (is) 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-Outsabove.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Summit Midstream Partners, LP)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $2,000,000 shall be set forth on Schedule 6.01) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than (x) intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary and (y) to the extent set forth on Schedule 6.01);
(b) Mortgage (i) Indebtedness as of created hereunder (including pursuant to Section 2.21) and under the date hereof other Loan Documents and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and (ii) any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
self-insurance and Indebtedness and other obligations owed to (g) trade payables and similar current including 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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;
(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 Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated 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 Agent and the Borrower;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations, in each case provided in the ordinary course of business or consistent with respect past practice, including those incurred to reimbursement-type secure health, safety and environmental obligations regarding workers compensation claimsin the ordinary course of business or consistent with past practice;
(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 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 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) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, replacementreplacement or improvement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement in an aggregate principal amount outstanding that immediately after giving effect to the incurrence of such fixed or capital asset; provided that Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness incurred under outstanding pursuant to this Section 7.02(i)(i) shall be without recourse to any Loan Parties 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 Loan Party Permitted Refinancing Indebtedness in an aggregate amount at respect of the foregoing;
(i) Capitalized Lease Obligations and any time not to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset other Indebtedness incurred by a Loan Party, the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;
arising from any Sale and Lease-Back Transaction that is permitted under Section 6.03 and (jii) any Permitted Refinancing Indebtedness in respect of Swap Contracts designed to hedge against the Borrower’s foregoing;
(i) Indebtedness of the Borrower 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 principal amount at 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 time other Indebtedness outstanding pursuant to this Section 6.01(k), would not to exceed the greater of $100,000,000 15,000,000 and 0.25 times the EBITDA calculated on a Pro Forma Basis for the then most recently ended Test Period, and (or such other increased amount as may be approved by the Required Lenders)ii) any Permitted Refinancing Indebtedness in respect thereof;
(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 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 their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder(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) Guarantees by a 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 Property-Level Subsidiaries any Subsidiary that is not a Subsidiary Loan Party 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 permitted by Section 6.04 (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.than
Appears in 1 contract
Sources: Credit Agreement (Open Lending Corp)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01), and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage (i) Indebtedness as of created hereunder (including pursuant to Section 2.21 (whether prior to, on or after the date hereof Ninth Incremental Assumption and listed on Schedule 5.07(bAmendment Agreement Effective Date), any renewals, amendments, modifications or extensions thereof that do not increase ) and under the principal amount thereofother Loan Documents, and (ii) any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated 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 Agent 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 Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, replacementreplacement or improvement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement in an aggregate principal amount that immediately after giving effect to the incurrence of such fixed or capital asset; provided that 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 this Section 7.02(i)(i) shall be without recourse to any Loan Parties 6.03, and (ii) any Loan Party Permitted Refinancing Indebtedness in respect thereof;
(i) other Indebtedness of the Borrower or any Subsidiary, in an aggregate principal amount at 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 time 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 exceed $10,000,000its 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 not more 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 180 days before or after Section 6.04(v)); provided, that Guarantees by 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 order Loan Party under this Section 6.01(m) of any other Indebtedness of a person that is subordinated to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement other Indebtedness of such fixed or capital assetperson shall be expressly subordinated to the Loan Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(jn) 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 Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred 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 $1,246,000,000 and not for speculative purposes and guarantees (ii) any Permitted Refinancing Indebtedness in respect thereof;
(ki) 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 under by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the ERF Program in an aggregate principal 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 anyIndebtedness outstanding pursuant to this Section 6.01(q)(i), interest 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 (including post-petition interest and payment in kind interest), accretion or amortization y) the incurrence of original issue discount, fees, expenses and charges with respect term loan Indebtedness pursuant to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
this clause (mq)(i) (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries shall be subject to the extent consisting last paragraph of Guarantees that do not provide any greater recourse to Section 6.01 and the applicable Loan Party than the Mortgage Recourse Carve-Outs; provided that such Guarantees are entered into in the ordinary course last paragraph of business Section 6.02, and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties any Permitted Refinancing Indebtedness in respect of Indebtedness otherwise permitted hereunderthereof;
(ni) Indebtedness representing deferred compensation secured by Liens on Collateral that are Junior Liens so long as immediately after giving effect to current or former directorsthe incurrence of such Indebtedness and the use of proceeds thereof, officersthe 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, employeeswhen taken together with the aggregate principal amount of any other Indebtedness outstanding pursuant to Section 6.01(q)(i), members 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 management, managers$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 consultants of the Loan Parties and/or (ii) any of their respective Subsidiaries and Controlled JV Subsidiaries Permitted Refinancing Indebtedness in the ordinary course of business; andrespect thereof;
(oi) unsecured Indebtedness incurred in so long as immediately after giving effect to the ordinary course incurrence of business 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 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 this clause (s)(i) at such time that is recourse to any Loan Party, incurred by a Subsidiary other than Mortgage Recourse Carve-Outs.than
Appears in 1 contract
Sources: Incremental Assumption and Amendment Agreement (ADT Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) the Loans and Obligations;
(b) 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 (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan No Credit Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 permit to exist any Indebtedness, except (without duplication) (i) Indebtedness secured by purchase money security interests and Capital Leases permitted in Section 6.7(d), (ii) Indebtedness incurred to finance the purchase of insurance, (iii) the Loans and the other Obligations, (iv) unfunded pension fund and other employee benefit plan obligations and liabilities to the extent they are permitted to remain unfunded under applicable law, (v) existing Indebtedness described in Disclosure Schedule (6.3) and refinancings thereof or amendments or modifications thereto that is recourse do not have the effect of increasing the principal amount thereof or changing the amortization thereof (other than to extend the same) and that are otherwise on terms and conditions no less favorable to any Loan Credit Party, Agent or any Lender, as reasonably determined by Agent, than the terms of the Indebtedness being refinanced, amended or modified, (vi) Indebtedness under the GE Credit Agreement evidenced by the GE Credit Agreement Documents and refinancings thereof or amendments thereto, to the extent permitted hereunder and by the SREF Intercreditor Agreement, (vii) Indebtedness incurred by the Borrowers pursuant to the Trade Lien Program as in effect on the date hereof or otherwise on terms reasonably acceptable to the Agent subject to the Trade Lien Intercreditor Agreement, (viii) unsecured Indebtedness not to exceed $5,000,000, (ix) Indebtedness, on terms satisfactory to Agent, incurred in connection with the issuance of a surety bond under PACA, (x) Indebtedness permitted under Sections 6.6 and 6.7, (xi) Indebtedness of any Credit Party arising after the date hereof in the ordinary course of the business of such Credit Party pursuant to guarantees in favor of third parties by such Credit Party of the obligations of its wholesale customers under leases of real or personal property from such third parties by such wholesale customers, provided, that, (A) the maximum aggregate amount that the Credit Parties may be required to pay in any Fiscal Year pursuant to such guarantees, shall not exceed $1,000,000, (B) as of the date of entering into any such guarantee, the Excess Availability shall be not less than $50,000,000 and (C) as of the date of entering into any such guarantee and after giving effect thereto, no Default or Event of Default shall exist or have occurred; and (xii) Indebtedness consisting of intercompany loans and advances made by any Credit Party to any other Credit Party; provided, that: (A) each Credit Party shall have executed and delivered to each other Credit Party, on the Closing Date, (1) a demand note (collectively, the “Intercompany Notes”) to evidence any such intercompany Indebtedness owing at any time by such Credit Party to such other Credit Party which Intercompany Notes shall be in form and substance reasonably satisfactory to Agent and such Intercompany Notes shall be pledged and delivered to Agent, subject to the SREF Intercreditor Agreement, and (2) the applicable Pledge Agreement or Security Agreement as additional collateral security for the Obligations; (B) each Borrower shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent; (C) the obligations of each Credit Party under any such Intercompany Notes shall be subordinated to the Obligations of such Borrower hereunder in a manner reasonably satisfactory to Agent; (D) at the time any such intercompany loan or advance is made by any Borrower to any other Credit Party and after giving effect thereto, each such Borrower shall be Solvent; and (E) no Default or Event of Default would occur and be continuing after giving effect to any such proposed intercompany loan.
(b) No Credit Party shall, directly or indirectly, voluntarily purchase, redeem, defease or prepay any principal of, premium, if any, interest or other amount payable in respect of any Indebtedness, other than Mortgage Recourse Carve-Outs(i) the Obligations; (ii) the obligations under the GE Credit Agreement; (iii) Indebtedness secured by a Permitted Encumbrance or other Liens permitted by Section 6.7(b), (d), (e) or (f) if the asset securing such Indebtedness has been sold or otherwise disposed of in accordance with Section 6.8(b), (c) or (d); (iv) Indebtedness permitted by Section 6.3(a)(v) upon any refinancing thereof in accordance with Section 6.3(a)(v); and (v) as otherwise permitted in Section 6.14.
Appears in 1 contract
Sources: Credit Agreement (Penn Traffic Co)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 (excluding Indebtedness under clause (b) of this Section 6.01) and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a Person not affiliated with the Borrower or any Subsidiary of the Borrower);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment or financing plans for Indebtedness of the payment of insurance policy premiumsBorrower and its Subsidiaries pursuant to Swap Agreements permitted by Section 6.12;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any of its Subsidiaries pursuant to reimbursement or other indemnification obligations to such Person; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Borrower or any of its Subsidiaries owing to the Borrower or any Subsidiary of the Borrower to the extent permitted by Section 6.04, provided that such Indebtedness shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent (the “Subordinated Intercompany Debt”);
(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, including those incurred to secure health, safety and environmental obligations in the ordinary course of business and Indebtedness arising out of advances on exports, advances on imports, customer prepayments and similar transactions in the ordinary course of business and consistent with past practice;
(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 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 Person merged into, amalgamated or consolidated with the Borrower or any of its Subsidiaries 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 (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by to Refinance such Indebtedness, provided that, solely with respect to a Person being merged into, amalgamated or consolidated with the Borrower or any of its Subsidiaries and Indebtedness being assumed in connection with the acquisition of assets, 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 would not exceed U.S. $30,000,000;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset Capital Lease Obligations and purchase money Indebtedness incurred by the Borrower or any Subsidiary of its Subsidiaries prior to or Controlled JV Subsidiarywithin 90 days after the acquisition, lease or improvement of the respective asset permitted under this Agreement in order to finance such acquisition, constructionlease or improvement, repairand any Permitted Refinancing Indebtedness in respect thereof, replacementin an aggregate principal amount that at the time of, leaseand after giving effect to, expansionthe incurrence thereof would not exceed U.S. $25,000,000;
(j) Capital Lease Obligations incurred by the Borrower or any of its Subsidiaries in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03;
(k) other unsecured Indebtedness, development, installation, relocation, renewal, maintenance, upgrade in an aggregate principal amount at any time outstanding pursuant to this Section 6.01(k) not to exceed U.S. $50,000,000;
(l) Guarantees (i) by any Loan Party of any Indebtedness of any other Loan Party or improvement any other Subsidiary of such fixed the Borrower and (ii) by any Subsidiary that is not a Loan Party of Indebtedness of the Borrower or capital assetany of its Subsidiaries; provided that Guarantees by the Borrower or any Indebtedness incurred of its Subsidiaries under this Section 7.02(i)(i6.01(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 of its Subsidiaries 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 of Borrower, other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary of the Borrower for the purpose of financing such acquisition;
(n) Indebtedness supported by a letter of credit issued pursuant to the Multi-Year Credit Facility, in a principal amount not in excess of the stated amount of such letter of credit;
(o) Indebtedness consisting of Permitted Senior Unsecured Debt in an aggregate principal amount not to exceed U.S. $200,000,000;
(p) Indebtedness of the Loan Parties pursuant to the Multi-Year Credit Facility and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(q) (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 be without recourse to any Loan Parties not exceed U.S. $100,000,000 and (ii) any Loan Party in an aggregate amount at any time not Permitted Refinancing Indebtedness incurred to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after 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 order to finance Refinance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetIndebtedness;
(jr) Indebtedness in respect consisting 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;insurance premium financing arrangements; and
(ks) 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 premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in paragraphs (ma) through (ir) 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-Outsabove.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Frank's International N.V.)
Indebtedness. CreateNone of the Loan Parties shall create, incur, assume or suffer permit to exist any Indebtedness or engage in any off-balance sheet finance transaction or other than similar transaction except for the following:following (“Permitted Indebtedness”):
(ai) Indebtedness of the Loans and ObligationsLoan Parties under the Credit Documents;
(bii) Mortgage Indebtedness as of the Loan Parties listed in Schedule 5.02(a) and existing on the date hereof and listed on Schedule 5.07(bof this Agreement (excluding any extension, renewal, replacement or refinancing thereof), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and any Permitted Refinancings thereof;
(ciii) Monthly payment, installment or financing plans Indebtedness of the Loan Parties under Rate Contracts entered into with respect to the Loans; provided that (A) all such Rate Contracts are entered into in connection with bona fide hedging operations and not for speculation and (B) the payment aggregate notional principal amount under all such Rate Contracts does not exceed the Effective Amount of insurance policy premiumsthe Loans at any time;
(d) Indebtedness arising from (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(eiv) Indebtedness of a the Loan Party Parties with respect to any surety, appeal, indemnity, performance or other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled 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, bonds in the ordinary course of business, including those for laboratories (including surety or similar bonds issued in respect connection with the stay of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-a proceeding of the type obligations regarding workers compensation claimsdescribed in Section 6.01(h));
(iv) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary Guaranty Obligations of the Borrower that is not a Loan Party in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 respect of Permitted Indebtedness of any other Loan Party;
(vi) Indebtedness, if any, owing to any other Loan Parties; provided that the Investment constituting such Indebtedness is permitted by Section 5.02(e)(iii);
(vii) purchase money Indebtedness, vendor financing and Capital Lease obligations in an aggregate principal amount at any time not to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after 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 7,500,000 at any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetone time outstanding;
(jviii) Indebtedness, if any, owing to The ▇▇▇▇▇▇▇▇▇ Company under the ▇▇▇▇▇▇▇▇▇ Distribution Agreement;
(ix) Subordinated Obligations incurred after the Closing Date; provided that such Indebtedness is on terms and conditions and pursuant to documentation (including rate, tenor, amount, security and subordination) satisfactory to the Required Lenders and the Required Lenders consent thereto is evidenced in writing; and
(x) 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 principal amount at any time not to exceed $100,000,000 (5,000,000 at any time outstanding arising in connection with one or such other increased amount as may be approved more letters of credit issued 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 Lender under separate documentation between a Loan Party and such Lender (for the avoidance of Indebtedness doubt, each letter of Property-Level Subsidiaries to the extent consisting credit described in this clause (x) is not a Letter 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 Credit as defined 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-Outsthis Agreement).
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing on the Loans Closing Date (provided that any Indebtedness that is in excess of $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 on Schedule 6.01) and Obligationsany Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (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 that any Indebtedness of the Borrower or a Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party shall be subordinated to the Secured Obligations on terms reasonably satisfactory to the Administrative Agent;
(b) Mortgage Indebtedness as of created hereunder and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Swap Agreements not entered into for the payment of insurance policy premiumsspeculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, or (ii) any Mortgage in each case in the ordinary course of business; provided, that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers’ compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, 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 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 other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall be contractually subordinated in right of payment to the prior repayment in full of the Secured Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar current obligations to a trade creditor incurred obligations, in each case outstanding on the Closing Date or otherwise provided in the ordinary course of business (whether or not consistent with past practices) of the Borrower, including those incurred to secure health, safety and not evidenced by a noteenvironmental obligations in the ordinary course of business;
(hg) 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 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, 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 its Subsidiaries Indebtedness otherwise permitted hereunder of any Subsidiary that is not the Borrower or Controlled JV Subsidiaries 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, bankers’ acceptances, 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 createdconsistent 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 relating to (ii) take-or-pay obligations or liability incurredcontained in supply arrangements, in each case, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(ir) other 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary so long as (A) no Default or Controlled JV SubsidiaryEvent of Default shall have occurred and be continuing or would result therefrom, in order and (B) after giving effect to finance such acquisitionthe issuance, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade incurrence or improvement assumption of such fixed or capital asset; provided 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 any Indebtedness incurred under this Section 7.02(i)(i) shall be without recourse to any are not Subsidiary Loan Parties and (ii) any Loan Party in an aggregate amount not to exceed at any time not 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 exceed $10,000,000, incurred in the ordinary course date of business not more than 180 days before or after such incurrence for which financial statements have been delivered pursuant to Section 5.04;
(t) unsecured Indebtedness constituting obligations of 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 to pay the deferred purchase price of goods or Controlled JV Subsidiaryservices or progress payments in connection with such goods and services; provided, that such obligations are incurred in order to finance connection with open accounts extended by suppliers on customary trade terms (which require that all such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement payments be made within 90 days after the incurrence of such fixed or capital asset;
(jthe related obligations) 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 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 guarantees (ii) any Permitted Refinancing Indebtedness in respect thereof;
(kx) 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)of Excluded Subsidiaries;
(ly) without duplication 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 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 Investment permitted hereunder;
(maa) (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries the Borrower or any Subsidiary to any joint venture (regardless of the extent consisting form of Guarantees legal entity) that do is not provide any greater recourse to the applicable Loan Party than the Mortgage Recourse Carve-Outs; provided that such Guarantees are entered into 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) Guarantees 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 Controlled JV Subsidiaries the Borrower from (x) the issuance or Subsidiaries that 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 Loan Parties 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 Indebtedness otherwise permitted hereunderany Junior Financing pursuant to Section 6.09(b)(i)(C);
(nhh) Indebtedness representing deferred compensation to current or former directors, officers, employees, members Customer deposits and advance payments received in the ordinary course of management, managers, business from customers for goods and consultants of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries services purchased in the ordinary course of business; and
(oii) 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 ordinary course case of business under performancesuch Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, surety, statutory and appeal bonds. In furtherance of on 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.date tha
Appears in 1 contract
Indebtedness. CreateThe Parent and the Borrower will not, and will not permit any of their respective Subsidiaries (other than Immaterial Subsidiaries) to, create, incur, assume or suffer permit to exist any Indebtedness Indebtedness, other than the followingthan:
(a) Indebtedness in respect of the Loans and Obligations;
(b) Mortgage Indebtedness existing as of the date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase Closing Date which is identified in Item 8.2(b) of the principal amount thereof, and any Permitted Refinancings thereofDisclosure Schedule;
(c) Monthly paymentIndebtedness (i) 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, installment 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 books of the Borrower or financing plans such Subsidiary), (ii) in respect of performance bonds, workers’ compensation claims, surety, statutory, bid or appeal bonds, completion guarantees 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 indemnification obligations owed to (including in respect of letters of credit obtained for the payment benefit of) any Person with respect to (x) workers’ compensation, health, disability or other employee benefits or (y) property, casualty or liability insurance, provided by such Person to the Borrower or any of insurance policy premiumsits 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 arising from of the Borrower or any of its Subsidiaries (i) any agreement providing for indemnification, adjustment in respect of purchase price industrial revenue bonds or other similar obligations (including contingent earn-out obligations) incurred in connection with any Investment governmental or Disposition permitted hereunder and Indebtedness comprising guarantees, letters of credit, bank guaranties, surety municipal bonds, performance bonds or similar instruments securing the performance pursuant to such agreement, or (ii) any Mortgage Indebtedness evidencing the deferred purchase price of newly acquired property or incurred to financefinance repairs, improvements or additions to property, or assumed in connection with, an the 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% property of the fair market value Borrower and its Subsidiaries (determined as 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 date of entry into Borrower or its Subsidiaries; provided, that, such Indebtedness is incurred within 120 days following the agreement for such acquisition or Investment) of such Hotel Property property, and (or part iii) in respect of a Hotel Property) and Capitalized Lease Liabilities; provided that the aggregate amount of all Indebtedness outstanding pursuant to this clause shall not at any Permitted Refinancings thereoftime 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 respect to the Indebtedness of any other such Subsidiary, which Indebtedness
(i) shall, if payable to the Parent, the Borrower or a 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 Party to any other Loan Party and/or any Subsidiary or Controlled JV SubsidiaryDocument, 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 Controlled JV 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 incurred in respect of Permitted Receivables Transactions;
(h) Indebtedness of a Person existing at the time such Person became a Subsidiary of the Borrower, but only if such Indebtedness was not created or 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 interest rate or currency exchange rate fluctuations, in each case arising in the ordinary course of business of the Borrower and its Subsidiaries and not for speculative purposes;
(j) Indebtedness in respect of netting services, overdraft protections and otherwise in 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 other Subsidiary cash interest or Controlled JV Subsidiary and/or any Loan Partyprincipal prior to six months after the maturity of the Term Loans (“Permitted Seller Debt”) and Indebtedness consisting of Deferred Acquisition Obligations; 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 Deferred Acquisition Obligations are unsecured and subordinated in right of payment to the prior repayment in full of the Obligations and on terms reasonably satisfactory to the Administrative Agent;
(fl) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 and its Subsidiaries (other than Indebtedness of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by Foreign Subsidiaries owing to the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(iGuarantors) shall be without recourse to any Loan Parties and (ii) any Loan Party in an aggregate amount at any time outstanding not to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after 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 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;25,000,000; and
(m) Permitted Refinancings of the Indebtedness listed above (i) Guarantees by a Loan Party of other than Indebtedness of Property-Level Subsidiaries the type permitted under clause (a) hereof; provided that, in the case of 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 extent consisting of Guarantees date that do not provide any greater recourse to is seven and one-half years after the applicable Loan Party than the Mortgage Recourse Carve-OutsClosing Date; provided provided, however, 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 no Indebtedness otherwise permitted hereunder;
by clauses (nd), (e)(ii), (f), (g), (h), (i), (k), (l) Indebtedness representing deferred compensation to current or former directors(m) shall be assumed, officers, employees, members of management, managers, created or otherwise incurred if a Default has occurred 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 is then continuing or suffer to exist any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outswould result therefrom.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness of the Loans Company or any Subsidiary existing on the Closing Date (provided that any such Indebtedness in excess of $10,000,000 shall be set forth on Schedule 6.01) and Obligationsany Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Company or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Company or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements permitted by Section 6.10;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Company or self-insurance any Subsidiary, pursuant to reimbursement or other indemnification obligations to such person, in each case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Company to any Subsidiary and of any Subsidiary to the Company or any other Subsidiary; provided that (i) Indebtedness of any Subsidiary that is not the Subsidiary Guarantor owing to the Loan 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 the Subsidiary Guarantor shall be made expressly subject to a note containing subordination provisions reasonably satisfactory to the Company and the Administrative Agent;
(i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary in respect of the Borrower that is not a Loan Party performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business not more than 180 days before or after the acquisitionbusiness, constructionincluding those incurred to secure health, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 safety 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 after 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 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 environmental obligations in the ordinary course of business and (ii) ordinary course Guarantees by Controlled JV Subsidiaries and any related credit support or Subsidiaries that suretyship arrangements so long as the same do not constitute Loan Parties in respect of Indebtedness otherwise permitted hereunderfor borrowed money or a Guarantee thereof;
(ng) Indebtedness representing deferred compensation to current arising from the honoring by a bank or former directorsother financial institution of a check, officers, employees, members draft or similar instrument drawn against insufficient funds in the ordinary course of management, managers, and consultants of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries business or other cash management services in the ordinary course of business; andprovided 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, 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 business;
(v) [reserved];
(w) Indebtedness of any New Vessel Subsidiary under performance, surety, statutory and appeal bonds. In furtherance a New Vessel Financing (in an initial aggregate principal amount not to exceed [*]% of the foregoingpurchase 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, no Propertybut 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-Level 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 create, incur, assume 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 suffer granted on such Deemed Date. With respect to exist any Indebtedness that is recourse was permitted to be incurred hereunder on the date of such incurrence, any Loan Party, other than Mortgage Recourse Carve-OutsIncreased 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. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness existing or committed or anticipated in the Loans and Obligations;
future to be outstanding on the Signing Date (bprovided, that any Indebtedness incurred pursuant to this clause (a)(i) Mortgage Indebtedness as in an aggregate principal amount in excess of $35,000,000 or anticipated on the date hereof and listed Signing Date to be outstanding in the future, shall be set forth on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, 6.01) and any Permitted Refinancings thereof;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from (i) any 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) Indebtedness existing or committed, or anticipated in the future to be outstanding, on the Spinoff Date (provided that any Mortgage Indebtedness incurred pursuant to finance, or assumed this clause (a)(ii) shall be permitted only if the Administrative Agent consents thereto (in connection with, an acquisition or Investment in a Hotel Property (or part of a Hotel Propertyits reasonable discretion) or the direct or indirect Equity Interests of any Person that owns a Hotel Property, not and Schedule 6.01 is updated accordingly to exceed 70% of the fair market value (determined as of the date of entry into the agreement for include such acquisition or Investment) of such Hotel Property (or part of a Hotel PropertyIndebtedness) and any Permitted Refinancings thereof;
Refinancing Indebtedness incurred to Refinance Indebtedness incurred pursuant to this clause (ea); provided, that any Indebtedness outstanding pursuant to this clause (a) Indebtedness of which is owed by a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Loan Obligations under this Agreement on terms reasonably satisfactory to the Administrative Agentcustomary terms;
(fb) Indebtedness in respect of Banking Servicescreated 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;
(gc) trade payables and similar current obligations Indebtedness of Parent or any Subsidiary pursuant to a trade creditor incurred in the ordinary course of business and not evidenced by a noteHedging Agreements entered into for non-speculative purposes;
(hd) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries owed to (including obligations in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Parent or self-insurance 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 Parent to any Subsidiary and of any Subsidiary to 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 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 customary 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 Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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 (including Capitalized Lease Obligations) incurred by (i) any of a 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 acquired after the acquisitionSpinoff Date or a person merged or consolidated with Parent, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the 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 Controlled JV Subsidiaryassumed; provided, that, (x) Indebtedness incurred pursuant to preceding sub clause (h)(i) shall be in order existence prior to such Permitted Acquisition and shall not have been created in contemplation thereof or in connection therewith; (ii) Indebtedness incurred to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetany Permitted Acquisition after the Spinoff Date; provided that any Indebtedness incurred under this Section 7.02(i)(i(i) shall be without recourse in an amount not to any Loan Parties 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 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 after 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 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) Permitted Refinancing Indebtedness incurred under the ERF Program in an aggregate amount at to Refinance any time not Indebtedness incurred pursuant to exceed $100,000,000 this clause (or such other increased amount as may be approved by the Required Lendersh);
(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 1 contract
Sources: Credit Agreement (Adient PLC)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and Obligations;
(b) 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 (i) Indebtedness existing or committed on the Closing Date (provided, that any agreement providing for indemnification, adjustment Indebtedness that is in excess 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property$20.0 million individually is set forth on Schedule 6.01) and any Permitted Refinancings thereof;
Refinancing Indebtedness incurred to Refinance such Indebtedness (eor 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; provided 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 of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment Loan Obligations under this Agreement on subordination terms as described in full of the Obligations Global Intercompany Note or on other subordination terms reasonably satisfactory to the Administrative AgentAgent and the Borrower;
(fb) Indebtedness in respect of Banking Servicescreated hereunder (including pursuant to Section 2.21) and under the other Loan Documents and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(gc) trade payables and similar current obligations Indebtedness of the Borrower or any Subsidiary pursuant to a trade creditor incurred in the ordinary course of business and Swap Agreements not evidenced by a noteentered into for speculative purposes;
(hd) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries owed to (including obligations in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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, 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, (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 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 Agent 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 respect past practice or industry practices, including those incurred to reimbursement-type secure health, safety and environmental obligations regarding workers compensation claimsin 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 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 Capitalized Lease 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 by 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) 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 after the acquisition(i) Capital Lease Obligations, constructionmortgage financings, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset slot financing arrangements and other purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, replacementreplacement or improvement, leasein 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, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 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 time 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 exceed $10,000,000be 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 not more than 180 days before or after the acquisitionon ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(s); provided, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement that (x) Guarantees by any Loan Party under this Section 6.01(m) of any other Indebtedness of a fixed or capital asset incurred by a person that is subordinated to other Indebtedness of such person shall be subordinated to the Loan Party, 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 Controlled JV Subsidiaryacquisition price or similar obligations (including earn outs), in order to finance such acquisitioneach case, constructionincurred or assumed in connection with the Transactions and any Permitted Business Acquisition, repairother Investments or the disposition of any business, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade assets or improvement of such fixed or capital asseta Subsidiary not prohibited by this Agreement;
(jo) Indebtedness in respect of Swap Contracts designed letters of credit, bank guarantees, warehouse receipts or similar instruments issued to hedge against the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business and not for speculative purposes and guarantees thereofor consistent with past practice or industry practice;
(kp) Indebtedness incurred under supported by a Letter of Credit, in a principal amount not in excess of the ERF Program in an aggregate stated amount at any time not to exceed $100,000,000 (or of such other increased amount as may be approved by the Required Lenders)Letter of Credit;
(lq) without duplication Indebtedness consisting 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 the financing 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 insurance premiums or (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties take-or-pay obligations contained in respect of Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current or former directorssupply arrangements, officersin each case, 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;
(oi) 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 under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, no Property-Level 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 shall createincurred in the ordinary course of business;
(v) Indebtedness in connection with Permitted Receivables Financings in an aggregate principal amount outstanding that, incurimmediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof, assume would not exceed $115.0 million;
(w) Indebtedness of the Borrower and the Subsidiaries incurred under lines of credit or suffer 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 exist 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 that is recourse to permitted under Section 6.01(jj) (or any Loan PartyRefinancing thereof);
(x) Indebtedness of, other than Mortgage Recourse Carve-Outs.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. CreateSuch Credit Party will not permit or cause any of the Subsidiaries of Swiss Holdings (other than Holdings or any other Subsidiary that has joined this Agreement as a Guarantor and guaranteed the Obligations pursuant to ARTICLE XI) to create, incur, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except for:
(ai) the Loans and Obligations;
(b) 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 (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party Subsidiaries of Swiss Holdings owing to any Swiss Holdings or to other Loan Party and/or any Subsidiary or Controlled JV SubsidiarySubsidiaries of Swiss Holdings, and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; provided that any if such Indebtedness is owed by a Credit Party, such Indebtedness (including any guarantees of a Loan Party such Indebtedness), if any, is subordinate to a Subsidiary or Controlled JV Subsidiary that is not a Loan Party shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(fiii) Indebtedness consisting of current liabilities not for borrowed money incurred in the ordinary course of business;
(iv) Indebtedness incurred by (A) any Insurance Subsidiary in respect of Banking Services;
standby letters of credit issued in connection with Primary Policies or Reinsurance Agreements entered into in the ordinary course of business, (gB) trade payables and similar current any Insurance Subsidiary in respect of standby letters of credit issued to provide funds at Lloyd’s to support Lloyd’s syndicated commitments of such Insurance Subsidiary, (C) any Insurance Subsidiary in respect of standby letters of credit issued to any Governmental Authority as required to conduct its business in the jurisdiction of such Governmental Authority, (D) any Insurance Subsidiary in respect of guarantees issued to support obligations to a trade creditor of any other Subsidiary of Swiss Holdings incurred in the ordinary course of business and not evidenced by a note(E) any Subsidiary in respect of standby letters of credit issued to secure obligations of the type set forth in the definition of “Permitted Liens”;
(hv) obligations (contingent or otherwise) existing or arising under any swap or futures contract or Hedge Agreement entered into by such Person in the ordinary course of business for the purpose of hedging currency, commodity, credit, inflation or interest rate risk or other similar hedging arrangements;
(vi) Indebtedness incurred by a Loan Party of any Person existing at the time such Person is merged into or consolidated with Swiss Holdings or any of its Subsidiaries by Acquisition and any extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (x) no Default or Controlled JV Subsidiaries Event of Default exists or arises after giving effect to such Acquisition, (y) such Indebtedness was not incurred in respect contemplation of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts such Acquisition and (z) no Subsidiary (other than the existing obligor at the time such Person was acquired) shall incur or similar instruments issued have any direct or created, or relating to obligations or indirect liability incurred, for such Indebtedness;
(vii) Indebtedness in connection with securities lending arrangements with financial institutions in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(iviii) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary of the Borrower that which is not a Loan Party in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 connection with any Subsidiary or Controlled JV Subsidiary, in 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 Lien permitted 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 LendersSection 7.3(iv);
(lix) without duplication Indebtedness incurred by any Subsidiary that does not at any time own, directly or indirectly, any Capital Stock of any Insurance Subsidiary; provided, that such Indebtedness shall be non-recourse to any Insurance Subsidiary and any other IndebtednessSubsidiary (other than Holdings or any other Guarantor) that at any time owns, all premiums (if any)directly or indirectly, interest (including post-petition interest and payment in kind interest), accretion or amortization any Capital Stock 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 hereunderany Insurance Subsidiary;
(mx) Indebtedness arising under Guaranty Obligations of any Subsidiary of Indebtedness owed by any other Subsidiaries of the type described in the foregoing clauses (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-Outsthrough (v) and (vii) through (ix) above; provided that such Guarantees are entered into in the ordinary course of business and (ii) Guarantees by Controlled JV Subsidiaries or only Subsidiaries that do not constitute Loan Parties in respect at any time own, directly or indirectly, any Capital Stock of any Insurance Subsidiary are permitted to guarantee 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 type described in the ordinary course of businessforegoing clause (ix); and
(oxi) Indebtedness incurred in not otherwise permitted by the ordinary course foregoing clauses (i) through (x) above, provided that the aggregate amount of business under performance, surety, statutory and appeal bonds. In furtherance all such Indebtedness at any one time outstanding does not exceed 5% 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-OutsConsolidated Net Worth at such time.
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings, AG)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary); any Covenant Party);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under 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 thereofother Loan Documents;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiaryany Covenant Party pursuant to Hedging Agreements permitted by Section 6.11;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any SubsidiaryCovenant Party, pursuant to reimbursement or other indemnification obligations to such person, in each case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers 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 Borrowera First Tier Covenant Party or any other Subsidiary, (ii) the Borrowera First Tier Covenant Party to any Subsidiary Loan Party or any other First Tier Covenant Party or (iii) any Subsidiary other than a Subsidiary Loan Party to the Borrowera First Tier Covenant Party or any other Subsidiary; provided that (A) Indebtedness pursuant to clauses (i) and (ii) of this Section 6.01(e) shall be unsecured and subordinated in right of payment to the Obligations on terms reasonably satisfactory to the Administrative Agent 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 clause Section 6.01(m)(A) and Section 6.01(v) below, $20.025.0 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, including (x) those incurred to secure health, safety and environmental obligations in the ordinary course of business, so long as the underlying obligations with respect 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 or obligations under Cash Management Agreements, in each case 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 Borrowera First Tier Covenant Party 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 (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by 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 BorrowerCovenant Parties shall be in Pro Forma Compliance;
(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 after the acquisitionCapital Lease Obligations, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary Subsidiaryany Covenant Party prior to or Controlled JV Subsidiarywithin 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 such the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade lease or improvement of such fixed 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 capital asset; provided 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 ABL Priority 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));
(j) Capital Lease Obligations incurred by the Borrower or any Subsidiaryany Covenant Party 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 unsecured or junior Lien 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 $150.0 million;
(l) Guarantees (i) by Holdings, the Borrower, any other First Tier Covenant Party or any Subsidiary Loan PartiesParty of the Indebtedness of Holdings, the Borrower, any other First Tier Covenant Party or any Subsidiary Loan Party described in Section 6.01(u), so long as the Liens securing the Guarantee of such obligations (or any Permitted Refinancing Indebtedness in respect thereof) are subject to the Intercreditor Agreement, (ii) by Holdings, the Borrower, any other First Tier Covenant Party or any Subsidiary Loan Party of any Indebtedness of Holdings, the Borrower, any other First Tier Covenant Party or any Subsidiary Loan Party permitted to be incurred under this Section 7.02(i)(i6.01, (iii) shall be without recourse to by any Subsidiary that is not a Subsidiary Loan Party of Indebtedness of another Subsidiary that is not a Subsidiary Loan Party and (iv) of Indebtedness otherwise permitted hereunder of Subsidiaries that are not Loan Parties and to the extent permitted by Section 6.04 (ii) other than Section 6.04(s)); provided that Guarantees by any Loan Party under this Section 6.01(l) of any other Indebtedness of a person that is subordinated in an aggregate amount right of payment to other Indebtedness of such person shall be expressly subordinated in right of payment to the Loan Obligations to at any time not least the same extent as such underlying Indebtedness is subordinated;
(m) Indebtedness in respect of (A) letters of credit, bank guarantees, warehouse receipts or similar instruments issued to exceed $10,000,000, incurred support performance obligations and trade letters of credit (other than obligations in respect of other Indebtedness) in the ordinary course of business business, in an amount not more than 180 days before to exceed, in the aggregate with the letters of credit permitted under clause Section 6.01(f) above, $20.0 and guarantees permitted under Section 6.01(v) below, $25.0 million outstanding at any time, or after (B) letters of credit issued in favor of the acquisitionSwingline Lender or the Issuing Bank pursuant to arrangements designed to eliminate the Swingline Lender’s or Issuing Bank’s risk with respect to a Defaulting Lender’s participation in Swingline Loans or Letters of Credit, constructionrespectively, repairas contemplated by Section 2.05(a) or Section 2.22, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement as applicable;
(n) Indebtedness arising from agreements of a fixed or capital asset incurred by a Loan Party, the Borrower or any Subsidiary Subsidiaryany Covenant Party providing for indemnification, adjustment of purchase or Controlled JV Subsidiaryacquisition price or similar obligations, in order to finance 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, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;
(jo) 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 in an aggregate amount not to exceed $50.0 million outstanding at any time;
(q) unsecured Indebtedness in respect of Swap Contracts designed to hedge against obligations of the Borrower’s Borrower or any Subsidiary’s exposure Subsidiaryany Covenant Party to interest rates, foreign exchange rates pay the deferred purchase price of goods or commodities pricing risks 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 for speculative purposes and guarantees thereofin connection with the borrowing of money, cash management services or any Hedging Agreements;
(kr) Indebtedness representing deferred compensation to employees of the Borrower or any Subsidiaryany Covenant Party incurred under in the ERF Program ordinary course of business;
(s) (i) other Indebtedness so long as (x) no Default or Event of Default shall have occurred and be continuing or would result therefrom, and (y) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, (A) in an aggregate amount the case of Indebtedness secured by first-priority Liens on the Non-ABL Priority Collateral, the Total Net First Lien Leverage Ratio is not greater than 1.50 to 1.00 on a Pro Forma Basis after giving effect to such issuance, incurrence or assumption and (B) in the case of Indebtedness secured by Liens on the Non-ABL Priority Collateral that are pari passu or junior to the Liens on the Non-ABL Priority Collateral securing the Obligations, the Total Net Secured Leverage Ratio is not greater than 3.50 to 1.00 on a Pro Forma Basis after giving effect to such issuance, incurrence or assumption, (ii) unsecured Indebtedness so long as immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Total Net Leverage Ratio on a Pro Forma Basis shall not be greater than 3.50 to 1.00; provided that the incurrence of any Indebtedness pursuant to subclauses (i) and (ii) of this clause (s) shall be subject to the last paragraph of this Section 6.01, and (iii) and Permitted Refinancing Indebtedness in respect of any of the foregoing; provided that, for the avoidance of doubt, in connection with any Indebtedness incurred pursuant to clause (i) of this clause (s) and any Permitted Refinancing Indebtedness in respect thereof, the Borrower and its SubsidiariesCovenant Parties may grant Liens on the ABL Priority Collateral that are junior to the Liens on the ABL Priority Collateral securing the Obligations;
(t) other Indebtedness of the Borrower or any Subsidiaryany Covenant Party, so long as (i) the Payment Conditions are satisfied at any the time not to exceed $100,000,000 of incurrence of such Indebtedness and (ii) such Indebtedness is either unsecured or such other increased amount as may be approved secured by the Required Lendersjunior Liens on Collateral permitted by Section 6.02(ee);
(li) without duplication Indebtedness under the Term Loan Documents (or under any other credit facility, indenture or otherwise) so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom at the time of the issuance or incurrence of such Indebtedness in an outstanding principal amount not to exceed, together with the aggregate principal amount of any other IndebtednessIndebtedness outstanding pursuant to this Section 6.01(u)(i), the sum of (x) $250.0 million plus (y) such additional amount so long as immediately giving effect to the establishment of commitments for such Indebtedness pursuant to a definitive agreement or incurrence or issuance of Indebtedness in reliance on this subclause (y) only, on the date of incurrence or issuance thereof (A) in the case of Indebtedness secured by first-priority Liens on the Non-ABL Priority Collateral, the Total Net First Lien Leverage Ratio is not greater than 1.50 to 1.00 on a Pro Forma Basis after giving effect to such incurrence or issuance and (B) in the case of Indebtedness secured by Liens on the Non-ABL Priority Collateral that are pari passu with or junior to the Liens on the Non-ABL Priority Collateral securing the Obligations, the Total Net Secured Leverage Ratio is not greater than 3.50 to 1.00 on a Pro Forma Basis after giving effect to such incurrence or issuance; provided that the incurrence or issuance of any Indebtedness pursuant to this clause (u)(i) shall be subject to the last paragraph of this Section 6.01, and (ii) any Permitted Refinancing Indebtedness incurred or issued to Refinance any of the foregoing;
(v) Guarantees by any Covenant Party (including any Indebtedness in respect of letters of credit, bank guarantees or similar instruments to secure such Guarantees) in an amount not to exceed, in the aggregate with the Indebtedness under Section 6.01 (f) and Section 6.01(m)(A) above, $25.0 million outstanding at any time in respect of obligations of Verso Corporation under any arrangement where Verso Corporation procures products or services used in the ordinary course of business of the Loan Parties, to the extent such products or services are procured solely for the benefit of the Loan Parties and are received directly by the applicable Loan Parties, and no compensation is paid to Verso Corporation other than amounts that are used to pay the acquisition cost of such products or services to the providers thereof; and
(w) all premiums (if any, including tender premiums), defeasance costs, interest (including post-petition interest and payment in kind interestbut not, for the avoidance of doubt, accrued interest accreted to principal), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges additional or contingent interest on obligations described in clauses (a) through (uv) 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 Loan Parties 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 permitted hereby and their respective Subsidiaries is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from the Indebtedness being refinanced), and Controlled JV Subsidiaries permitted hereunder;
(m) 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) Guarantees by a Loan Party the outstanding or committed principal amount, as applicable, of such Indebtedness of Property-Level Subsidiaries being refinanced, plus (ii) 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 payment of the Loan Parties and/or any following is not prohibited by this Agreement, the aggregate amount of their respective Subsidiaries fees, underwriting discounts, premiums (including tender premiums), defeasance costs and Controlled JV Subsidiaries in the ordinary course of business; and
(o) Indebtedness other costs and expenses incurred in the ordinary course connection with such refinancing. Further, for purposes 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.determinin
Appears in 1 contract
Sources: Asset Based Revolving Credit Agreement (Verso Corp)
Indebtedness. CreateBorrower will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, incur, assume assume, guarantee or suffer to exist otherwise become or remain directly or indirectly liable with respect to, any Indebtedness other than the followingIndebtedness, except for:
(a) Indebtedness created in favor of Lender under the Loans and ObligationsLoan Documents;
(b) Mortgage without duplication of any Indebtedness otherwise permitted under this Section 6.1 or 6.3, Indebtedness outstanding on the date of this Agreement as set forth in Schedule 6.1 and any extension or renewal thereof (provided there is no increase in Indebtedness as a result of the date hereof and listed on Schedule 5.07(bany extension or renewal), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and any Permitted Refinancings thereof;
(c) Monthly paymentintercompany Indebtedness arising from loans made by Borrower to any Subsidiary, installment or financing plans for the payment of insurance policy premiumsby any Subsidiary to Borrower, or by any Subsidiary to any other Subsidiary;
(d) guaranties by Borrower of Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar other 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 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% Subsidiary and by any Subsidiary of the fair market value (determined as Indebtedness or other obligations of the date of entry into the agreement for such acquisition Borrower or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofother Subsidiary;
(e) Indebtedness of a Loan Party to any other Loan Party and/or Borrower or any Subsidiary as an account party in respect of trade letters of credit or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agentunder Swap Agreements permitted by Section 6.5;
(f) Indebtedness in respect arising from the honoring by a bank or other financial institution of Banking Services;
(g) trade payables and a check, draft or similar current obligations to a trade creditor incurred instrument drawn against insufficient funds in the ordinary course of business (and not evidenced by a noteas part of an overdraft line or similar credit facility);
(g) Indebtedness with respect to performance bonds, surety bonds, appeal bonds or custom bonds required in the ordinary course of business or in connection with the enforcement of rights or claims of Borrower or any of its Subsidiaries;
(h) Indebtedness incurred that may be deemed to exist in connection with obligations consisting of indemnification obligations, purchase price adjustments, warranty claims and similar obligations in connection with customer contracts or with agreements in connection with the acquisition or disposition of assets permitted by a Loan Party or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsthis Agreement;
(i) Indebtedness (including Capitalized Lease Obligationsthe Net Proceeds of which are applied in accordance with Section 3.5(a) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assethereof; 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 after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;and
(j) other 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 principal amount at any time not to exceed exceeding $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-Outs5,000,000.
Appears in 1 contract
Sources: Credit Agreement (Sauer Danfoss Inc)
Indebtedness. CreateThe Borrower will not, and will not permit any of its Restricted Subsidiaries to, incur, create, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and ObligationsSecured Obligations constituting Indebtedness;
(b) Mortgage Indebtedness as of existing on the date hereof Effective Date and listed set forth on Schedule 5.07(b)9.02 and extensions, renewals and replacements of any renewals, amendments, modifications or extensions thereof such Indebtedness with Indebtedness that do does not increase the outstanding principal amount thereof, and any Permitted Refinancings thereof;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiumsunsecured intercompany Indebtedness owed by any Loan Party to another Loan Party;
(d) Indebtedness arising from of the Borrower or any Restricted Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof, provided that (i) any agreement providing for indemnification, adjustment such Indebtedness is incurred prior to or within one hundred eighty (180) days after such acquisition or the completion of purchase price such construction or similar obligations (including contingent earn-out obligations) incurred in connection with any Investment or Disposition permitted hereunder improvement 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) the aggregate principal amount of Indebtedness permitted by this clause (d) at any Mortgage Indebtedness incurred to 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, time outstanding shall not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof$2,500,000;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary in respect of: (i) workers’ compensation claims or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness obligations in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or benefits; (ii) property, casualty or liability insurance or self-insurance insurance; (iii) completion, bid, performance, appeal or surety bonds issued for the account of the Borrower or any Restricted Subsidiary; or (iv) taxes, assessments or other government charges not yet delinquent or which are being contested in compliance with Section 8.04; in each of the foregoing cases, to the extent incurred in the ordinary course of business;
(f) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is promptly extinguished;
(g) Indebtedness of the Borrower or any Restricted Subsidiary that may be deemed to exist in connection with agreements providing for indemnification, contribution, purchase price adjustments and payments and similar obligations (including letters of credit, surety bonds or performance bonds securing any obligations of Loan Parties or any Subsidiary pursuant to such agreements) in connection with transactions permitted under Section 9.11;
(h) in addition to obligations owing by any Loan Party under any Secured Cash Management Agreement, Indebtedness 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 reimbursement-type obligations regarding workers compensation claimsany of the foregoing and/or otherwise in connection with cash management and deposit accounts and incentive, supplier finance or similar programs in an aggregate principal amount not to exceed $250,000 at any time;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 insurance premiums in an aggregate principal amount at any time not to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement amount of such fixed or capital assetinsurance premiums;
(j) Indebtedness associated with bonds, surety obligations or similar instruments required by Governmental Requirements in respect connection with the operation 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 Oil and not for speculative purposes and guarantees thereofGas Properties;
(k) other Indebtedness incurred under of the ERF Program Borrower or any Restricted Subsidiary in an aggregate principal amount at any time outstanding not to exceed $100,000,000 (or such other increased amount as may be approved by the Required Lenders)2,500,000;
(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 Guarantee with respect to any Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted to be incurred hereunder;
(m) (i) Guarantees by a Loan Party endorsements 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 negotiable instruments for collection, deposit 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 negotiation in the ordinary course of business; and
(on) obligations in respect of customary indemnification, adjustment of purchase price, earn-outs (to the extent not included as a liability on the balance sheet of such Person under GAAP) and holdbacks, in each case, incurred or assumed in connection with the Disposition of any business, assets or Equity Interests of a Restricted Subsidiary in a transaction permitted by this Agreement (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); provided, that in respect of any such obligations incurred or assumed in connection with any Disposition in which a Loan Party is the ordinary course seller, in an amount not to exceed the gross proceeds actually received by the Borrower or applicable Restricted Subsidiary in respect 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-Outssuch Disposition.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the following:Indebtedness, except
(a) Indebtedness existing on the Loans Amendment Effective Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance any Subsidiary, pursuant to reimbursement or other indemnification obligations to such person; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers 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 (i) Indebtedness 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 Subsidiary Loan Party shall be subordinated to the Obligations;
(f) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds, financial assurances and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(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 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 acquired after the Amendment Effective Date or a corporation merged into or consolidated with the Borrower or any Subsidiary after the Amendment Effective Date and Indebtedness assumed in connection with the acquisition of assets, which Indebtedness in each case exists at the time of such acquisition, merger or consolidation and is not created in contemplation of such event and where such acquisition, merger or consolidation is permitted by this Agreement, and (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by to Refinance such Indebtedness; provided that the aggregate principal amount of such Indebtedness incurred since the Amendment Effective Date 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) any Subsidiary or of this Section 6.01), would not exceed the greater of $50.0 million and 4.25% of Consolidated JV Subsidiary Total Assets as of the Borrower that is not a Loan Party in end of the ordinary course fiscal quarter immediately prior to the date of business not more than 180 days before or after the such acquisition, constructionmerger or consolidation, repairsuch assumption or such incurrence, replacementas applicable, leasefor which financial statements have been delivered pursuant to Section 5.04, expansiondetermined on a Pro Forma Basis;
(i) Capital Lease Obligations, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and purchase money Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 270 days after the acquisition, lease or improvement of the applicable asset permitted under this Agreement in order to finance such acquisitionacquisition or improvement, constructionand any Permitted Refinancing Indebtedness in respect thereof, repairin an aggregate principal amount incurred since the Amendment Effective Date that at the time of, replacementand after giving effect to, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement 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 fixed 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 capital assetany 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 incurred since the Amendment Effective Date 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, 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 Indebtedness incurred Subsidiary Loan Party under this Section 7.02(i)(i6.01(l) of any other Indebtedness of a person that is subordinated to other Indebtedness of such person shall be without recourse expressly subordinated to such other Indebtedness to the same extent;
(m) Indebtedness arising from agreements of the Borrower or any Loan Parties and Subsidiary providing for indemnification, adjustment of purchase or acquisition price or similar obligations, in each 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;
(iin) any Loan Party in 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 to exceed $10,000,000in 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, incurred in each case, in the ordinary course of business not more than 180 days before or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetbusiness;
(jq) 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 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;
(ks) 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 premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
additional or contingent interest on obligations described in paragraphs (ma) through (iq) 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 businessabove; and
(ot) Cash Management Obligations and other Indebtedness incurred in the ordinary course respect of business under performancenetting services, suretyoverdraft protection and similar arrangements, statutory in each case, in connection with cash management 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-Outsdeposit accounts.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than Indebtedness of the Lead Borrower to any Subsidiary or of any Subsidiary to the Lead Borrower or any Subsidiary that is Refinanced with Indebtedness owed to a Person other than the Lead Borrower or any Subsidiary);
(bi) Mortgage Indebtedness as of created hereunder and under the date hereof other Loan Documents (including any Incremental Revolving Loans) and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase (ii) Indebtedness incurred pursuant to the principal amount thereof, Term Loan Credit Agreement and any Permitted Refinancings thereofthe other Term Loan Documents;
(c) Monthly paymentIndebtedness of the Borrowers or any Subsidiary pursuant to Swap Agreements not entered into for speculative purposes (i) to the extent constituting Obligations and/or (ii) to the extent not constituting Obligations, installment or financing plans for in an aggregate amount, in the payment case of insurance policy premiumsthis clause (ii), not to exceed $22.5 million at any time outstanding;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance benefit of) any Person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrowers or any Subsidiary, pursuant to reimbursement or indemnification obligations to such agreementPerson, or (ii) any Mortgage in each case in the ordinary course of business; provided, that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers’ compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of the Borrowers to any Subsidiary and of any Subsidiary to the Borrowers or any Subsidiary; provided, that (i) Indebtedness of any Subsidiary that is not a Loan Party owing to the Loan Parties shall be subject to Section 6.04 and (ii) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 unsecured and shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on the terms set forth in the Intercompany Note or other terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Servicesperformance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) trade payables and Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar current obligations to a trade creditor incurred instrument drawn against insufficient funds in the ordinary course of business or other cash management services 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 notification to the Lead Borrower of its incurrence and not evidenced by a note(y) such Indebtedness in respect of credit or purchase cards is extinguished within 60 days from its incurrence;
(hi) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with the Borrowers 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, that (A) in each case, no Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) the aggregate amount of Indebtedness assumed or acquired pursuant to this paragraph (i) shall not exceed the greater of $52.5 million and 22% of EBITDA for the most recently ended Test Period at any time outstanding and (ii) without duplication, any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness.
(i) Capital Lease Obligations, mortgage financings and purchase money Indebtedness incurred by the Borrowers or any Subsidiary prior to or within 270 days after the 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 acquisition, lease or improvement, in an aggregate amount not to exceed the greater of $45 million and 20% of EBITDA for the most recently ended Test Period at any time outstanding and, without duplication, Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(j) other Indebtedness of the Borrowers 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 $15 million and 7% of EBITDA for the most recently ended Test Period at any time outstanding and, without duplication, Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(k) Indebtedness constituting Permitted Term Priority Indebtedness so long as (i) no Event of Default is continuing at the time of incurrence or would result from the incurrence of such Permitted Term Priority Indebtedness and (ii) the amount of Permitted Term Priority Indebtedness does not exceed $175 million at any time outstanding;
(l) Guarantees (i) by the Loan Parties of the Indebtedness of the Borrowers described in paragraphs (a) and (b) of this Section 6.01, (ii) by the Borrowers or any other Loan Party of any Indebtedness or other obligations of the Borrowers or any other Loan Party permitted to be incurred under this Agreement, (iii) by the Borrowers or any other 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 (other than Section 6.04(v)), (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 Borrowers 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(r) to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(v));
(m) Indebtedness arising from agreements of the Lead Borrower or any Subsidiary providing for indemnification, adjustment of its Subsidiaries purchase or Controlled JV Subsidiaries 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;
(n) Indebtedness in respect of letters of credit, bank guarantees, bankers’ acceptances, 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 in an aggregate amount not to exceed the greater of $7.5 million and 4% of EBITDA for the most recently ended Test Period at any time outstanding and, without duplication, Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(o) Indebtedness arising in connection with the sale of any tax refund, tax claim or createdsimilar amount or receivable (a “Permitted Tax Receivable Financing”) in an aggregate amount not to exceed the greater of $7.5 million and 4% of EBITDA for the most recently ended Test Period at any time outstanding and, without duplication, Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(p) Indebtedness consisting of (i) the financing of insurance premiums or relating to (ii) take or pay obligations or liability incurredcontained in supply arrangements, in each case, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(iq) 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 letter of credit facility in an aggregate amount not to exceed the greater of $7.5 million and 4% of EBITDA for the most recently ended Test Period at any time outstanding and, without duplication, Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(r) Indebtedness of non-Loan Party Foreign Subsidiaries (other than Indebtedness owed to the Lead Borrower or another Subsidiary) in an aggregate amount not to exceed the greater of $10,000,00045 million and 20.0% of EBITDA for the most recently ended Test Period at any time outstanding and, without duplication, Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(s) Indebtedness incurred in connection with any equipment financing, including by way of a Permitted Sale and Lease Bank Transaction, in an aggregate amount not to exceed the greater of $7.5 million and 4% of EBITDA for the most recently ended Test Period at any time outstanding and, without duplication, Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(t) Indebtedness representing deferred compensation to employees of the Borrowers or any Subsidiary incurred in the ordinary course of business not more than 180 days before or after (including amounts owing in connection with 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetMIP);
(ju) unsecured Indebtedness in respect of Swap Contracts designed to hedge against obligations of the Borrower’s Borrowers or any Subsidiary’s exposure Subsidiary to interest ratespay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, foreign exchange rates or commodities pricing risks 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 for speculative purposes and guarantees thereofin connection with the borrowing of money or any Swap Agreements;
(kv) Indebtedness incurred under the ERF Program on behalf of, or representing Guarantees of Indebtedness of, joint ventures, in an aggregate amount not to exceed the greater of $15 million or 7% of EBITDA for the most recently ended Test Period at any time not outstanding and, without duplication, Permitted Refinancing Indebtedness incurred to exceed $100,000,000 Refinance such Indebtedness;
(or such other increased amount as may be approved w) Indebtedness issued by the Required LendersBorrowers 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, if and to the extent such purchase or redemption is permitted by Section 6.06(c);
(lx) without duplication Indebtedness consisting of obligations of the Lead Borrower or any Subsidiary under deferred compensation or other similar arrangements incurred by such Person in connection with Permitted Business Acquisitions or any other Indebtedness, Investment permitted hereunder;
(y) Indebtedness incurred by the Lead Borrower pursuant to the Holdings Intercompany Note; and
(z) all premiums premium (if any, including tender premiums), defeasance costs, interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges 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 (in respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
term Indebtedness) or committed (min respect of revolving Indebtedness) (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries on or prior to the extent consisting Closing Date, on the Closing Date and, in the case of Guarantees such Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, on the date that do not provide any greater recourse to the applicable Loan Party than the Mortgage Recourse Carve-Outssuch Indebtedness was incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness); provided that if such Guarantees are entered into Indebtedness is incurred to refinance other Indebtedness denominated in a currency other than Dollars (or in a different currency from 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, managersbeing refinanced), and consultants 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 Loan Parties and/or any principal amount of their respective Subsidiaries such refinancing Indebtedness does not exceed the outstanding or committed principal amount, as applicable, of such Indebtedness being refinanced plus the aggregate amount of fees, underwriting discounts, premiums (including tender premiums), defeasance costs and Controlled JV Subsidiaries in the ordinary course of business; and
(o) Indebtedness other costs and expenses 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-Outsconnection with such refinancing.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness of the Loans Company or any Subsidiary existing on the Closing Date (provided that any such Indebtedness in excess of $10,000,000 shall be set forth on Schedule 6.01) and Obligationsany Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Company or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Company or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements permitted by Section 6.10;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Company or self-insurance any Subsidiary, pursuant to reimbursement or other indemnification obligations to such person, in each case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Company to any Subsidiary and of any Subsidiary to the Company or any other Subsidiary; provided that (i) Indebtedness of any Subsidiary that is not the Subsidiary Guarantor owing to the Loan 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 the Subsidiary Guarantor shall be made expressly subject to a note containing subordination provisions reasonably satisfactory to the Company and the Administrative Agent;
(i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary in respect of the Borrower that is not a Loan Party performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business not more than 180 days before or after the acquisitionbusiness, constructionincluding those incurred to secure health, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 safety 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 after 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 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 environmental obligations in the ordinary course of business and (ii) ordinary course Guarantees by Controlled JV Subsidiaries and any related credit support or Subsidiaries that suretyship arrangements so long as the same do not constitute Loan Parties in respect of Indebtedness otherwise permitted hereunderfor borrowed money or a Guarantee thereof;
(ng) Indebtedness representing deferred compensation to current arising from the honoring by a bank or former directorsother financial institution of a check, officers, employees, members draft or similar instrument drawn against insufficient funds in the ordinary course of management, managers, and consultants of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries business or other cash management services in the ordinary course of business; andprovided 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;
(oi) 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 ordinary course aggregate amount of business 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 performance, surety, statutory Section 6.03 would not exceed (x) the greater of $[*] and appeal bonds. In furtherance [*]% of Consolidated Total Assets as of the foregoingend 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 Property-Level Subsidiary Default or Event of Default shall createhave occurred and be continuing or would result therefrom, incur(B) immediately after giving effect to such acquisition, assume merger or suffer to exist 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 recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.permitted under Section 6.03;
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness (i) of the Loans Borrower and Obligationseach Subsidiary (that is a subsidiary of the Borrower on the Execution Date) existing on the Execution Date, and (ii) of Holdings and each Subsidiary of Holdings (that is not a subsidiary of the Borrower on the Execution Date) existing on the Closing Date, in each case, as set forth on Schedule 7.01 hereto, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with Holdings, the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under the date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereofother Loan Documents, and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment obligations (contingent or financing plans otherwise) arising under a Swap Contract if such obligations are (or were) entered into by such person for the payment purpose of insurance policy premiumsdirectly mitigating risks associated with fluctuations in interest rates, commodity prices or foreign exchange rates (or to allow any customer to do so), and not for speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, or (ii) any Mortgage in each case in the ordinary course of business; provided, that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers’ compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of a Holdings to any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Subsidiary; provided, that, except in respect of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management, tax and accounting operations among Holdings and its subsidiaries,
(i) Indebtedness of any Foreign Subsidiary owing to the Loan Parties shall be permitted under this clause (e) only to the extent permitted by Sections 7.04(j), 7.04(u) and 7.04(dd) and (ii) Indebtedness of any Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 Subsidiary Loan Party shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(gx) trade payables performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar current obligations to a trade creditor incurred obligations, in each case provided in the ordinary course of business or consistent with past practice or industry practice, including those incurred to secure health, safety and environmental obligations, or (y) letters of credit, performance bonds, bid bonds, appeal bonds, surety bonds, completion guarantees and similar obligations to secure obligations under self-insurance programs, or other financial assurance required by law, in an aggregate amount under this Section 7.01(f)(y) not evidenced to exceed $100,000,000 at any time outstanding;
(g) Indebtedness arising from the honoring by a notebank 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 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;
(h) (i) (x) Indebtedness of a Subsidiary acquired after the Closing Date or an entity merged into or consolidated or amalgamated with Holdings, 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 and (y) Indebtedness incurred to finance Investments permitted hereunder (including Permitted Business Acquisitions permitted pursuant to Section 7.04(k)) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided, (A) at the time of the assumption or incurrence of such Indebtedness and after giving effect thereto, no Event of Default shall have occurred and be continuing or would result therefrom (provided that, if such Indebtedness is incurred to finance, or assumed in connection with, a Permitted Business Acquisition or a Material Investment, then it shall only be required that no Event of Default described in Sections 8.01(b), (c), (h) or (i) shall have occurred and be continuing or would result therefrom), (B) immediately after giving effect to the assumption and incurrence of Indebtedness under this Section 7.01(h), the Borrower shall be in compliance on a Pro Forma Basis with the Leverage Ratio Toggle Test (provided, that if such Indebtedness is assumed as provided in preceding clause (x) or is incurred as provided in preceding clause (y), in either case, as part of an Investment not constituting a Material Investment but that constitutes a Permitted Business Acquisition, then satisfaction of the Leverage Ratio Toggle Test shall not be required), and (C) except during any Collateral Suspension Period, immediately after giving effect to the assumption and incurrence of Indebtedness under this Section 7.01(h), the Borrower shall be in compliance on a Pro Forma Basis with the Total Net Leverage Ratio Test. Notwithstanding anything in this Section 7.01(h) to the contrary, in the case of unsecured Indebtedness that is assumed (but not otherwise incurred) in connection with a Permitted Business Acquisition or an Investment permitted hereunder, in lieu of satisfying the Total Net Leverage Ratio Test under the foregoing subclause (C) (and, during a Collateral Suspension Period, in lieu of satisfying the Leverage Ratio Toggle Test under the foregoing subclause (B)), such unsecured Indebtedness may be assumed if, after giving effect to such assumption, the Total Net Leverage Ratio is not greater than the Total Net Leverage Ratio immediately prior to such Permitted Business Acquisition or Investment (including the assumption and incurrence of Indebtedness in connection therewith);
(i) [Reserved];
(j) Capital Lease Obligations incurred by Holdings, the Borrower or any Subsidiary in respect of any Sale and Lease Back Transaction that is permitted under Section 7.05 and any Permitted Refinancing Indebtedness in respect thereof;
(k) other Indebtedness of Holdings, 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 $75,000,000 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 4.05 or 6.04, as applicable and any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness; provided, that any Indebtedness incurred pursuant to this clause (k) that by its terms is subordinated in right of payment to the 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 Latest Maturity Date;
(l) Indebtedness of the Borrower pursuant to (i) the Senior Notes in an aggregate principal amount that is not in excess of $550,000,000 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(m) Guarantees (i) by Holdings and by the Subsidiary Loan Parties of the Indebtedness of the Borrower described in clause (l) of this Section 7.01, (ii) by Holdings, the Borrower or any Subsidiary Loan Party of any Indebtedness of Holdings, the Borrower or any Subsidiary Loan Party permitted to be incurred under this Agreement, (iii) by Holdings, the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Domestic Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 7.04 (other than Sections 7.04(l) or 7.04(w)), (iv) by Holdings, the Borrower or any Subsidiary Loan Party of Indebtedness otherwise permitted hereunder of any Foreign Subsidiary that is not a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 7.04(j), Section 7.04(u) or Section 7.04(dd) and (v) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party; provided, that Guarantees by Holdings, the Borrower or any Subsidiary Loan Party under this Section 7.01(m) of any Indebtedness of a person that is by its terms subordinated in right of payment to other Indebtedness of such person shall be expressly subordinated in right of payment to the Obligations;
(n) Indebtedness arising from agreements of Holdings 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 or the disposition of any business, assets or a Subsidiary not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by a Loan Party any person acquiring all or any portion of its Subsidiaries such business, assets or Controlled JV Subsidiaries a Subsidiary for the purpose of financing such acquisition;
(o) Indebtedness in respect of letters of credit, bank guarantees, bankers’ acceptances, 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 supported by a Letter of Credit in 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 created(ii) take-or-pay obligations contained in supply arrangements, or relating to obligations or liability incurredin each case, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) other Indebtedness (including Capitalized Lease Obligations) incurred by Holdings, the Borrower or any Subsidiary; provided, that (iA) any Subsidiary or Consolidated JV Subsidiary at the time of the incurrence of such Indebtedness and after giving full effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom, (B) other than during a Collateral Suspension Period, immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Borrower shall be in compliance on a Pro Forma Basis with the Total Net Leverage Ratio Test and (C) immediately after giving effect to the issuance, incurrence or assumption of such Indebtedness, the Borrower shall be in compliance on a Pro Forma Basis with the Leverage Ratio Toggle Test and (ii) Permitted Refinancing Indebtedness in respect thereof; provided, that, at the time of the incurrence of such Permitted Refinancing Indebtedness and after giving full effect thereto, no Default or Event of Default shall have occurred and be continuing or would result therefrom; provided, further, that any Indebtedness incurred pursuant to this clause (r) that by its terms is subordinated in right of payment to the 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 not a Loan Party 91 days following the Latest Maturity Date;
(s) [Reserved];
(t) unsecured Indebtedness in the ordinary course respect of business not more than 180 days before or after the acquisitionobligations of Holdings, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary to pay the deferred purchase price of goods or Controlled JV Subsidiaryservices or progress payments in connection with such goods and services; provided, in order to finance that such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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, obligations are incurred in the ordinary course of business not more than 180 connection with open accounts extended by suppliers on customary trade terms (which require that all such payments be made within 90 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement incurrence of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;
(jthe related obligations) 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 thereofin connection with the borrowing of money or any Swap Contracts;
(ku) Indebtedness representing deferred compensation to employees and directors of Holdings, the Borrower or any Subsidiary incurred in the ordinary course of business;
(v) Indebtedness in connection with Permitted Receivables Financings;
(w) Indebtedness evidenced by Other Term Loans, Other Revolver Loans and Incremental Notes, in each case incurred in accordance with Section 2.15 and, to the extent not constituting Obligations, Refinancing Debt incurred in accordance with Section 2.18 (provided that proceeds of such Refinancing Debt are applied in accordance with Section 2.11(b)) and any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(x) Indebtedness incurred under on behalf of, or representing Guarantees of Indebtedness of, joint ventures of Holdings, the ERF Program Borrower or any Subsidiary not in an aggregate amount excess, at any one time not to exceed outstanding, of $100,000,000 (or such other increased amount as may be approved by the Required Lenders)30,000,000;
(ly) without duplication Indebtedness issued by Holdings, the Borrower or any Subsidiary to current or former officers, directors and employees, or their respective estates, spouses or former spouses, to finance the purchase or redemption of Equity Interests of Holdings or any direct or indirect parent thereof permitted by Section 7.06;
(z) 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 Acquisitions or any other Indebtedness, Investment permitted hereunder; and
(aa) all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses, charges and additional or contingent interest on obligations described in paragraphs (a) through (z) above. For purposes of determining compliance with this Section 7.01 or Section 7.02, 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 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 and charges incurred in connection with such refinancing. In addition, 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 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. This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior to secured Indebtedness merely because it is recourse unsecured or (2) senior Indebtedness as subordinated or junior to any Loan Party, other than Mortgage Recourse Carve-Outssenior Indebtedness merely because it has a junior priority with respect to the same collateral.
Appears in 1 contract
Sources: Credit Agreement (Rayonier Advanced Materials Inc.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the following:
(a) the Loans and Obligations;
(b) 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 (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor incurred in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a No Loan Party or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 will create, incur, assume or suffer to exist or otherwise become or be liable in respect of any Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Loans and Letters of Credit;
(b) Contingent Liabilities of CatchMark Timber with respect to Indebtedness of any Unrestricted Timber Subsidiary pursuant to any Unrestricted Timber Transaction, solely in the form of a limited recourse guarantee of CatchMark Timber and in form and substance satisfactory to the Administrative Agent;
(c) Indebtedness with respect to any Secured Bank Product entered into in the ordinary course of business or any other cash management or similar arrangements entered into in the ordinary course of business;
(d) Indebtedness with respect to Rate Protection Agreements permitted pursuant to Section 7.2.21;
(e) Unsecured, subordinated Indebtedness among the Loan Parties;
(f) Contingent Liabilities of any Loan Party or Subsidiary of any Loan Party arising with respect to customary indemnification obligations incurred in the ordinary course of business;
(i) Contingent Liabilities in the form of Letters of Credit made by or for the account of any Loan Party or any Shell Subsidiary (including any Permitted JV Investment Subsidiary) as Credit Support in connection with any letter of intent or purchase agreement arising in connection with a transaction which, if consummated, would be permitted by Section 7.2.5(a)(vii) so long as such Credit Support does not exceed in the aggregate the Permitted Escrow Amount with respect to such transaction, and (ii) Contingent Liabilities of (1) any Permitted JV Investment Subsidiary with regard to the obligations of a Permitted Joint Venture or Shell Subsidiary, in each case, which is a subsidiary of such Permitted JV Investment Subsidiary and (2) CatchMark Timber with regard to the obligations of a Permitted JV Investment Subsidiary, Shell Subsidiary, or a Permitted Joint Venture, in each case of clauses (1) and (2), pursuant to any letter of intent or purchase agreement (or mandate or commitment letter regarding the financing thereof) arising in connection with a transaction which, if consummated, would be permitted by Section 7.2.5(a)(vii); provided that, (x) such Contingent Liabilities will be unsecured or will be secured solely by Credit Support that is recourse does not exceed in the aggregate the Permitted Escrow Amount with respect to such transaction and (y) unless otherwise agreed by the Administrative Agent in its sole discretion, such Contingent Liabilities will terminate with respect to CatchMark Timber no later than the consummation of such transaction;
(h) Contingent Liabilities of any Loan Party, other than Mortgage Recourse Carve-Outs.Shell Subsidiary, or Permitted JV Investment Subsidiary arising pursuant to (x) the Organizational Documents of any Permitted
Appears in 1 contract
Sources: Fifth Agreement Regarding Consents and Amendments (CatchMark Timber Trust, Inc.)
Indebtedness. Create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and ObligationsIndebtedness of any Loan Party pursuant to any Loan Document;
(b) Mortgage Indebtedness as of MVWC or of the date hereof Borrower to any Subsidiary and listed on Schedule 5.07(b), of any renewals, amendments, modifications Wholly Owned Subsidiary Guarantor to MVWC or extensions thereof that do not increase to the principal amount thereof, and Borrower or any Permitted Refinancings thereofother Subsidiary;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
(d) Indebtedness arising from (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Guarantee Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations to a trade creditor incurred in the ordinary course of business by MVWC or the Borrower or any of their respective Subsidiaries of obligations of any Wholly Owned Subsidiary Guarantor;
(d) Indebtedness outstanding on the Effective Date and listed on Schedule 7.3(d) and any refinancings, refundings, renewals or extensions thereof (without increasing, or shortening the maturity of, the principal amount thereof);
(e) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.4(g) in an aggregate principal amount not evidenced to exceed $12,000,000 at any one time outstanding;
(f) Indebtedness arising under any Swap Agreements permitted by a noteSection 7.12;
(g) Indebtedness in respect of, represented by, or in connection with appeal, bid, performance, surety, customs or similar bonds issued for the account of any Group Member, the performance of bids, tenders, sales or contracts (in each case, other than for the repayment of borrowed money), statutory obligations, workers’ compensation claims, unemployment insurance, other types of social security or pension benefits, self-insurance and similar obligations and arrangements, in each case, to the extent incurred in the ordinary course of business;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of creditunder, bank guaranteesand Guarantee Obligations relating to, bankers’ acceptances, warehouse receipts or similar instruments issued or created, or relating to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsReceivables Warehouse Facility;
(i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) Non-Recourse Debt of 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 Time Share SPV 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 thereofQualified Securitization Transactions;
(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 1 contract
Sources: Credit Agreement (MARRIOTT VACATIONS WORLDWIDE Corp)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date, including without limitation, Indebtedness of Foreign Subsidiaries that may be incurred under committed and Obligationsuncommitted working capital, letter of credit or bank guarantee lines outstanding and in effect on the Closing Date, and set forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (or working capital, letter of credit or bank guarantee lines) (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with Holdings or any subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment or financing plans for Indebtedness of Holdings and the payment of insurance policy premiumsSubsidiaries pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance benefit of) any person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings or any Subsidiary, pursuant to reimbursement or indemnification obligations to such agreementperson, or (ii) any Mortgage provided that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers' compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of a Loan Party any Borrower to any other Loan Party and/or Subsidiary and of any Subsidiary or Controlled JV Subsidiary, and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any Borrower or any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; Subsidiary, provided that any such (i) Indebtedness of a Loan Party to a Subsidiary or Controlled JV any Subsidiary that is not a Domestic Subsidiary Loan Party to the Loan Parties shall be contractually subject to Section 6.04(b) and (ii) Indebtedness of any Borrower to any Subsidiary and Indebtedness of any other Loan Party to any Subsidiary that is not a Domestic Subsidiary Loan Party (the "Subordinated Intercompany Debt") shall be subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar current obligations to a trade creditor incurred obligations, in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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, each case provided in the ordinary course of business, including in respect of workers compensation claims, those incurred to secure health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type safety and environmental obligations regarding workers compensation claimsin the ordinary course of business;
(ig) Indebtedness (including Capitalized Lease Obligations) incurred arising from the honoring by (i) any Subsidiary a bank or Consolidated JV Subsidiary other financial institution of the Borrower that is not a Loan Party check, draft or similar instrument drawn against insufficient funds in the ordinary course of business not more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 cash management services in the ordinary course of business; and
, provided that (ox) such 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.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;
Appears in 1 contract
Sources: Credit Agreement (Nalco Energy Services Equatorial Guinea LLC)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the following:
(exclusive of trade debt) except in respect of (a) the Loans and Obligations;
; (b) Mortgage Indebtedness as Capitalized Lease Obligations consisting of the date hereof and listed on Schedule 5.07(b)Capital Lease of the wet sand plant located in ▇▇▇▇▇▇ County, Wisconsin plus additional Capitalized Lease Obligations in an aggregate amount at any renewals, amendments, modifications or extensions thereof that do time outstanding not increase the principal amount thereof, and any Permitted Refinancings thereof;
to exceed $25,000,000; (c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
Permitted Purchase Money Indebtedness; (d) Indebtedness arising from under any Hedge so long as such Indebtedness (except to the extent constituting Hedge Liabilities) is unsecured; (e) Indebtedness owing to any other Credit Party or Restricted Subsidiary thereof so long as any such Indebtedness owing to any Person that is not a Credit Party is subordinated pursuant to an agreement reasonably satisfactory to Agent; (f) 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 Refinancing Indebtedness in respect thereof; (h) Indebtedness in respect of workers’ compensation claims, property casualty or liability insurance, and self-insurance obligations, in each case in the ordinary course of business; (i) 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, (j) Indebtedness of the Parent Guarantor or any agreement 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 price, earnouts or similar obligations (including contingent earn-out obligations) , in each case, incurred or assumed in connection with any Investment or a Disposition permitted hereunder and under Section 7.1(b) or a Permitted Acquisition, (l) Indebtedness comprising guaranteesof the Parent Guarantor or any Restricted Subsidiary in connection with performance bonds, letters bid bonds, appeal bonds, bankers acceptances, insurance obligations, workers’ compensation claims, health or other types of credit, bank guarantiessocial security benefits, surety bonds, performance completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Parent Guarantor or similar instruments securing the performance pursuant to such agreement, or (ii) any Mortgage Indebtedness incurred to 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Restricted Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or created, or relating pursuant to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance obligations and in each case not in connection with the borrowing of money or other the obtaining of advances, (m) Indebtedness with respect in the form of senior or subordinated notes, so long as immediately before and after giving effect to reimbursement-type obligations regarding workers compensation claims;
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 (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary 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 Borrower that is last day of the fiscal quarter most recently ended on or prior to the date of such incurrence of Indebtedness for which financial statements have been provided to Agent pursuant to Section 9.7 or 9.8(a) (as applicable); and (iii) (A) such Indebtedness shall not a Loan Party in the ordinary course mature and shall not provide for any mandatory prepayments, offers to repurchase or redemptions (other than customary asset sale and change of business not more than 180 control offers) until at least 91 days before or after the acquisitionMaturity Date, construction(B) such Indebtedness shall not be guaranteed by any person other than a Credit Party, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement (C) the aggregate amount of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order Indebtedness permitted to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset; provided that any Indebtedness be incurred under this Section 7.02(i)(i7.6(m) by Restricted Subsidiaries that are not Credit Parties shall not exceed $10,000,000 at any time outstanding, (D) the covenants, mandatory prepayments, events of default and guarantees of such Indebtedness, taken as a whole, shall not be without recourse 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 Loan Parties such provisions apply after the Maturity Date and (E) the Borrowing Agent 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) any Loan Party in and (iii) and containing the calculations required by the preceding clause (ii); provided that (x) the Maximum Revolving Advance Amount shall be reduced by an aggregate amount at any time not equal to exceed $10,000,000the net proceeds of such notes and if as a result of such reduction the Revolving Facility Usage exceeds the Line Cap, incurred in the ordinary course of business not Credit Parties shall promptly comply with Section 2.6 and (y) no more than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement $10,000,000 of a fixed or capital asset incurred by a Loan Party, Borrower or any Subsidiary or Controlled JV Subsidiary, in 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 pursuant 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;
this clause (m) (i) Guarantees may be secured 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 Lien 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 directorsthe Specified Note, officers, employees, members of management, managers, and consultants including interest payments thereon by the increase in the principal amount hereof in accordance with the terms 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-OutsSpecified Note.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Emerge Energy Services LP)
Indebtedness. CreateIncur, incurcreate, assume or suffer to exist or otherwise become liable in respect of any Indebtedness other than Indebtedness, except that the followingfollowing shall be permitted:
(a) Indebtedness under the Loans and ObligationsLoan Documents;
(b) Mortgage Indebtedness as existing on the Effective Date and set forth in Schedule 6.01 and extensions, renewals and replacements of the date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof such Indebtedness with Indebtedness of a similar type that do does not increase the outstanding principal amount thereof, and any Permitted Refinancings thereof;
(c) Monthly paymentIndebtedness in respect of Capital Lease Obligations and Purchase Money Obligations for fixed or capital assets within the limitations set forth in Section 6.02(d), installment or financing plans for and extensions, renewals and replacements of any such Indebtedness that do not increase the payment outstanding principal amount thereof; provided, however, that the aggregate principal amount of insurance policy premiumsall Indebtedness permitted by this Section 6.01(c) shall not exceed $15,000,000 at any one time outstanding;
(d) Indebtedness arising from (i) any 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 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 Borrower or any Regulated Insurance Company under Swap Obligations to the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofextent permitted by Section 6.06;
(e) Indebtedness constituting Investments permitted by Section 6.04(d);
(f) Indebtedness arising from the honoring by a bank or other financial institution of a Loan Party check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its incurrence;
(g) (i) Indebtedness resulting from the endorsements of instruments for deposit in the ordinary course of business, (ii) to the extent constituting Indebtedness, obligations in respect of purchasing card and credit card arrangements and (iii) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, appeal bonds, surety bonds and similar obligations, in each case, incurred in the ordinary course of business;
(h) any repurchase obligations of the Borrower or any Regulated Insurance Company under any Repurchase Agreement and any Repurchase Liability of the Borrower or any Regulated Insurance Company; provided, however, that the aggregate amount of all such obligations and Repurchase Liabilities permitted by this Section 6.01(h) shall not exceed $150,000,000 at any time outstanding;
(i) Indebtedness which represents an extension, refinancing or renewal of any of the Indebtedness described in Section 6.01(j), (k) or (l); provided that, (i) the aggregate principal amount of such Indebtedness is not greater than the aggregate principal amount of the Indebtedness so extended, refinanced or renewed, (ii) the interest rate of such Indebtedness is not higher than the interest rate of the Indebtedness so extended, refinanced or renewed (other than an increase of such interest rate to the then current market interest rate for such type of Indebtedness, as applicable), (iii) such Indebtedness may be secured by the Liens that secured the Indebtedness so extended, refinanced or renewed; provided such Liens do not extend to any other Loan Party and/or additional property of the Borrower or any Subsidiary or Controlled JV Subsidiary, and (iv) no Subsidiary is required to become obligated with respect thereto unless previously obligated on such refinanced Indebtedness, (v) such Indebtedness does not result in a shortening of a Subsidiary the maturity of the Indebtedness so extended, refinanced or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; provided that renewed, (vi) the terms of any such Indebtedness are not less favorable to the obligor thereunder than the original terms of a Loan Party to a Subsidiary the Indebtedness so extended, refinanced or Controlled JV Subsidiary renewed and (vii) if the Indebtedness that is not a Loan Party shall be contractually extended, refinanced or renewed was subordinated in right of payment to the Obligations, then the terms and conditions of the extension, refinancing or renewal Indebtedness must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the Indebtedness so extended, refinanced or renewed;
(j) Indebtedness of a Person that becomes a Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any of its Subsidiaries, in each case after the Effective Date in connection with a Permitted Acquisition, and any extensions, refinancings and renewals of such Indebtedness in accordance with Section 6.01(i); provided that (i) such Indebtedness existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in contemplation of or in connection with such Permitted Acquisition, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary (other than by any such Person that so becomes a Subsidiary), (iii) no Default or Event of Default has occurred and is continuing prior repayment to the assumption of such Indebtedness or would arise after giving effect (including giving effect on a pro forma basis) thereto and (iv) the sum of the aggregate principal amount of Indebtedness permitted by this clause (j) and clause (k) below shall not exceed $20,000,000 at any time outstanding;
(k) unsecured Indebtedness in full respect of obligations to make Deferred Acquisition Payments, and extensions, refinancings and renewals of such Indebtedness in accordance with Section 6.01(i); provided that the sum of the aggregate amount of Indebtedness permitted by this clause (k) and clause (j) above shall not exceed $20,000,000 at any time outstanding; provided further that, if the aggregate amount of all such obligations to make Deferred Acquisition Payments exceeds $10,000,000 at any one time, then such excess amount shall be subordinated to the Obligations on terms and conditions, and pursuant to documentation, reasonably satisfactory to the Administrative Agent; provided, further, that any payments in respect of such Indebtedness shall be subject to Sections 6.07(b) and 6.13(a)(iii);
(fl) in the case of Reliant, the Reliant Indebtedness and any extension, refinancing or renewal of any of such Reliant Indebtedness in accordance with Section 6.01(i); provided that (i) the aggregate principal amount of the Reliant Indebtedness shall not exceed $1,500,000 outstanding at any time, and (ii) any payments in respect of Banking Servicessuch Reliant Indebtedness shall be subject to Section 6.13(a)(ii);
(gm) trade payables and similar current with respect to any Specified Life Settlement Subsidiary, any Indebtedness or obligations to a trade creditor of such Specified Life Settlement Subsidiary; provided that neither the Borrower nor any Subsidiary shall be liable, directly or indirectly, for any such Indebtedness or obligations or otherwise give security therefor;
(n) FHLB Loans incurred in the ordinary course of business and on customary terms and conditions; provided that the aggregate principal amount of Indebtedness permitted by this clause (n) shall not evidenced by a noteexceed $20,000,000 at any time outstanding;
(ho) Guarantees by any Subsidiary of the Borrower in respect of Indebtedness incurred by a Loan Party otherwise permitted hereunder of the Borrower or any other Subsidiary of the Borrower; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations; provided further that the aggregate principal amount of Guarantees permitted by this clause (o) shall not exceed $10,000,000 at any time outstanding; and
(p) other unsecured Indebtedness of the Borrower and its Subsidiaries (including, for the avoidance of doubt, Indebtedness of the Borrower or Controlled JV Subsidiaries any Subsidiary as an account party 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 principal amount not exceeding $25,000,000 at any time not to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after 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 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-Outsoutstanding.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date (provided, that any such Indebtedness that is in excess of $2,000,000 shall be set forth on Schedule 6.01) and Obligationsany Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder (including pursuant to Section 2.21) and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, in each case in the ordinary course of business or (ii) any Mortgage Indebtedness incurred to finance, consistent with past practice 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofindustry 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 Holdings or any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 unsecured and subordinated in right of payment to the prior repayment Loan Obligations under this Agreement on subordination terms substantially in full the form of the Obligations Exhibit F hereto or on other subordination terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar current obligations to a trade creditor incurred 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 not evidenced by a noteenvironmental obligations in the ordinary course of business;
(hg) 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 all or substantially all of the assets of, or all or substantially all of the Equity Interests (other than directors’ qualifying shares) not previously held by the Borrower and its Subsidiaries in, or merger, consolidation or amalgamation with, a person or a division or line of business of a person or a controlling interest in a person (or any subsequent investment made in a person, division or line of business previously acquired in any such acquisition), where such acquisition, merger or consolidation is not prohibited by this Agreement; provided, that (x) in the case of Indebtedness secured by Liens on the Collateral that are pari passu with, or senior to, the Liens on the Collateral securing the Loan Obligations, the Net First Lien Leverage Ratio on a Pro Forma Basis immediately after giving effect to such acquisition, merger or consolidation, the assumption or incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof) and any related transactions is (I) not greater than 3.50 to 1.00 or (II) no greater than the Net First Lien Leverage Ratio in effect immediately prior thereto, (y) in the case of Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Term B Loans, 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 (but without netting any of the proceeds thereof) and any related transactions is (I) not greater than 4.50 to 1.00 or (II) no greater than the Net Secured Leverage Ratio in effect immediately prior thereto and (z) in the case of unsecured Indebtedness, the Total Net 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 (but without netting any of the proceeds thereof) and any related transactions is (I) not greater than 5.00 to 1.00 or (II) no greater than the Total Net Leverage Ratio in effect immediately prior thereto; provided, further, (A) that the incurrence of any Indebtedness for borrowed money pursuant to this clause (h)(i) (except for any seller note or other seller financing) shall be subject to the last paragraph of this Section 6.01, and (B) any such Indebtedness incurred by any Subsidiary that is not a Guarantor shall not exceed at the time of, and after giving effect to, the incurrence thereof, together with the aggregate principal amount of any other non-Guarantor Indebtedness outstanding pursuant to Section 6.01(l)(i), (r)(i) and (s)(i), the greater of $25,000,000 and 2.5% of Consolidated Total Assets; 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 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 $50,000,000 and 4.5% of Consolidated Total Assets, 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) 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, together with the aggregate amount of any other Indebtedness outstanding pursuant to this Section 6.01(k), would not exceed the greater of $50,000,000 and 4.5% of Consolidated Total Assets, and any Permitted Refinancing Indebtedness in respect thereof;
(i) Indebtedness secured by Liens on the Collateral that are (or, if any Term B Obligations were then outstanding, would have been) pari passu with the Liens securing the Term B Obligations so long as, at the time of and after giving effect to the issuance or incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof), the Net First Lien Leverage Ratio on a Pro Forma Basis is not greater than 3.50 to 1.00, provided, (A) that the incurrence of any Indebtedness for borrowed money pursuant to this clause (l)(i) shall be subject to the penultimate paragraph of this Section 6.01 and if any such Indebtedness incurred pursuant to clause (l)(i) is secured by pari passu Liens on Collateral pursuant to Section 6.02(ii) and is in the form of term loans (other than High Yield-Style Loans), then the incurrence of such Indebtedness pursuant to clause (l)(i) shall be further subject to the last paragraph of this Section 6.01 to the extent applicable and (B) any such Indebtedness incurred by any Subsidiary that is not a Guarantor shall not exceed at the time of, and after giving effect to, the incurrence thereof, together with the aggregate principal amount of any other non-Guarantor Indebtedness outstanding pursuant to Section 6.01(h)(i), (r)(i) and (s)(i), the greater of $25,000,000 and 2.5% of Consolidated Total Assets, and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(m) Guarantees (i) by any Loan Party of any Indebtedness of the Borrower or any Subsidiary permitted to be incurred under this Agreement, (ii) by the Borrower or any Subsidiary Loan Party of its 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 (x) Guarantees by the Borrower or Controlled JV Subsidiaries 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 and (y) no Guarantee by any Subsidiary of any Junior Financing shall be permitted unless such Subsidiary has also provided a Guarantee of the Loan Obligations pursuant to the Guarantee Agreement;
(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, bankers’ acceptances, 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 createdconsistent with past practice or industry practices;
(p) Indebtedness incurred under the ABL Credit Agreement (or under any other credit facility with availability subject to a borrowing base formula) with aggregate commitments in an amount not to exceed the Permitted ABL Commitment Amount on the date such commitments are established;
(q) Indebtedness consisting of (i) the financing of insurance premiums or (ii) take-or-pay obligations contained in supply arrangements, or relating to obligations or liability incurredin each case, in the ordinary course of business, including in respect of workers compensation claims, health, disability business consistent with past 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 claimsindustry practice;
(ir) Indebtedness (including Capitalized Lease Obligations) incurred by (i) other Indebtedness secured by Liens on the Collateral that are junior to the Liens on the Collateral securing the Loan Obligations under this Agreement, so long as after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof), the Net Secured Leverage Ratio on a Pro Forma Basis is not greater than 4.50 to 1.00; provided, that (A) the incurrence of any Indebtedness for borrowed money pursuant to this clause (r)(i) shall be subject to the penultimate paragraph of this Section 6.01 and (B) any such Indebtedness incurred by any Subsidiary or Consolidated JV Subsidiary of the Borrower that is not a Loan Party in Guarantor shall not exceed at the ordinary course time of, and after giving effect to, the incurrence thereof, together with the aggregate principal amount of business not more than 180 days before or after any other non-Guarantor Indebtedness outstanding pursuant to Section 6.01(h)(i), (l)(i) and (s)(i), the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement greater of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement $25,000,000 and 2.5% of such fixed or capital assetConsolidated Total Assets; 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 after 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 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) Permitted Refinancing 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;
(ks) other unsecured Indebtedness so long as the Total Net Leverage Ratio on a Pro Forma Basis immediately after giving effect to the incurrence of such Indebtedness and the use of proceeds thereof (but without netting any of the proceeds thereof) is not greater than 5.00 to 1.00; provided, (A) that the incurrence of any Indebtedness for borrowed money pursuant to this clause (s)(i) shall be subject to the penultimate paragraph of this Section 6.01 and (B) any such Indebtedness incurred under by any Subsidiary that is not a Guarantor shall not exceed at the ERF Program in an time of, and after giving effect to, the incurrence thereof, together with the aggregate principal 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 anynon-Guarantor Indebtedness outstanding pursuant to Section 6.01(h)(i), interest (including post-petition interest l)(i) and payment in kind interest(r)(i), accretion or amortization the greater of original issue discount, fees, expenses $25,000,000 and charges with respect to Indebtedness 2.5% 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 Consolidated Total Assets and (ii) Guarantees by Controlled JV Subsidiaries or any Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness of Subsidiaries that do are not constitute Subsidiary Loan Parties 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(t), would not exceed the greater of $25,000,000 and 2.5% of Consolidated Total Assets, and any Permitted Refinancing Indebtedness in respect of Indebtedness otherwise permitted hereunderthereof;
(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
(ou) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, no Property-Level that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business consistent with past or industry 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 Borrower or its Subsidiaries, any direct or indirect parent thereof) or any Subsidiary shall createincurred in the ordinary course of business consistent with past or industry practice;
(w) Indebtedness in connection with Permitted Receivables Financings.
(i) Indebtedness represented by the Second Lien Secured Notes in an aggregate principal amount not to exceed on the date of incurrence, incur$350,000,000, assume or suffer and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(y) obligations in respect of Cash Management Agreements;
(z) Refinancing Notes hereunder and any Permitted Refinancing Indebtedness incurred in respect thereof;
(i) Indebtedness in an aggregate principal amount not to exist exceed at the time of incurrence an amount equal to clause (i) of the definition of Incremental Amount at such time, and (ii) any Permitted Refinancing Indebtedness in respect thereof; provided, that (A) the incurrence of any Indebtedness that for borrowed money pursuant to this clause (aa) shall be subject to the penultimate paragraph of this Section 6.01 and (B) if any such Indebtedness incurred pursuant to Section 6.01(aa)(i) is recourse secured by pari passu Liens on Collateral pursuant to any Loan Party, Section 6.02(jj) and is in the form of term loans (other than Mortgage Recourse CarveHigh Yield-Outs.Style Loans), then the incurrence of such Indebtedness pursuant to Section 6.01(aa)(i) shall be further subject to the last paragraph of this Section 6.01 to the extent applicable;
(bb) [Reserved];
(cc) 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(cc), would not exceed the greater of $25,000,000 and 2.5% of Consolidated Total Assets, and any Permitted Refinancing Indebtedness in respect thereof;
(dd) Indebtedness issued by the Borrower or any of its Subsidiary to current or former officers, directors and employees, their respective estates, spouses or forme
Appears in 1 contract
Sources: First Lien Credit Agreement (DS Services of America, Inc.)
Indebtedness. CreateIncur, incurcreate, issue, assume or otherwise become or remain liable with respect to or suffer to exist (collectively, “Incur”) any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and ObligationsIndebtedness of any Loan Party pursuant to any Loan Document;
(b) Mortgage Indebtedness existing as of the date hereof Closing Date and listed on identified in Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, 3.7(a) and any Permitted Refinancings thereofRefinancing of such Indebtedness;
(c) Monthly paymentIndebtedness of the Borrower or any of its Subsidiaries (i) evidencing the deferred purchase price of newly acquired property or Incurred to finance the acquisition of or improvement of a fixed or capital asset of the Borrower or such Subsidiary used in the ordinary course of business of the Borrower or such Subsidiary (provided that such Indebtedness is Incurred within 180 days following the acquisition of such property or asset), installment or financing plans for the payment and (ii) in respect of insurance policy premiumsCapital Lease Obligations;
(di) Indebtedness arising from (i) of the Borrower payable to any 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 Loan Party 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 finance, or assumed in connection with, an acquisition or Investment in a Hotel Property (or part of a Hotel Property) Loan Party payable to the Borrower or any other Loan Party, in each case, such indebtedness to be subordinated to the direct or indirect Equity Interests of any Person that owns a Hotel Property, not to exceed 70% Obligations of the fair market value (determined as of Loan Parties under the date of entry into Loan Documents on terms and conditions satisfactory to the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofAdministrative Agent;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 Holdings that is not a Loan Party shall be contractually subordinated in right of payment owed to the prior repayment in full Borrower or to a Wholly-Owned Subsidiary of the Obligations on terms reasonably satisfactory Borrower that is a Loan Party to the Administrative Agentextent permitted by Section 6.7(f);
(f) Indebtedness in respect of Banking ServicesHedge Obligations arising under any Hedge Agreement required under Section 5.9 or any other Hedge Agreement permitted pursuant to Section 6.11;
(g) trade payables and Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar current obligations to a trade creditor incurred instrument drawn against insufficient funds in the ordinary course of business of the Borrower and not evidenced by a noteits Subsidiaries; provided that such Indebtedness is extinguished within five Business Days of Incurrence;
(h) Indebtedness incurred by a Loan Party or any consisting of its Subsidiaries or Controlled JV Subsidiaries repurchase obligations of the Master Repurchase Sellers under the Warehouse Facility; provided that in no event shall (a) the aggregate obligations in respect of letters the financing of creditany “LLC Interests” under and as described in the Warehouse Facility documentation exceed $150,000,000 or (b) any principal amount repaid under the Warehouse Facility be drawn or borrowed again;
(i) Contingent Obligations of the Borrower not exceeding ten (10) percent of the aggregate commitments under the Warehouse Facility;
(j) Contingent liabilities under surety bonds, bank guaranteescustoms and appeal bonds, bankers’ acceptances, warehouse receipts governmental contracts and leases or similar instruments issued or created, or relating to obligations or liability incurred, Incurred in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 of any time not Group Member (excluding Contingent Obligations) acquired pursuant to exceed $100,000,000 a Permitted Acquisition (or such other increased amount Indebtedness assumed at the time and as may be approved by the Required Lendersa result of a Permitted Acquisition);
(l1) without duplication Indebtedness in respect of any other Indebtednessworkers’compensation claims, all premiums (if any)self-insurance obligations, interest (including post-petition interest performance bonds, export or import indemnitees or similar instruments, customs bonds, governmental contracts, leases, surety appeal or similar bonds 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 completion guarantees provided 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 Group Member 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 hereunderits business;
(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 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, or (ii) any Mortgage Indebtedness incurred to finance, or assumed in connection with, an acquisition or Investment each case in a Hotel Property (or part the ordinary course 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofbusiness;
(e) Indebtedness of a Loan Party the Borrower to Holdings or any Subsidiary and of any Subsidiary to Holdings, the Borrower or any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary; provided, that, other than in the case of intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations of Holdings and the subsidiaries to finance working capital needs of the subsidiaries, (i) Indebtedness of 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 Subsidiary Loan Party owing to the Loan Parties shall be contractually subject to Section 6.04(b) and (ii) Indebtedness of the Borrower to any Subsidiary that is not a Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall, if legally permissible, be subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness (including obligations in respect of Banking Services;
(gletters of credit and bank guarantees) trade payables in respect of performance, bid, appeal and similar current obligations to a trade creditor incurred surety bonds and completion guarantees provided by the Borrower or any of its Subsidiaries in the ordinary course of business and not evidenced by a noteor consistent with past practice or industry practice;
(hg) 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 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 $622.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), (ii) the Senior Subordinated Notes in an aggregate principal amount that is not in excess of $200.0 million (plus any interest and premium (including tender premiums) paid by increases to principal), and (iii) 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), so long as the Guarantee of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness in respect thereof is subordinated on substantially the same terms as set forth in the Senior Subordinated Notes Indenture with respect to the Senior Subordinated Notes, (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 its 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 6.04(b); provided, that Guarantees by the Borrower or Controlled JV Subsidiaries 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, 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, bankers’ acceptances, 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 created(ii) take-or-pay obligations contained in supply arrangements, or relating to obligations or liability incurredin each case, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) other 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary Loan Party so long as (A) no Default or Controlled JV SubsidiaryEvent of Default shall have occurred and be continuing or would result therefrom and (B) immediately after giving effect to the issuance, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade incurrence or improvement assumption of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i) Indebtedness, the Senior Secured Leverage Ratio on a Pro Forma Basis shall not be without recourse greater than 4.25 to any Loan Parties 1.00 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(s) Indebtedness of Subsidiaries that are not Loan Party Parties in an aggregate amount not to exceed at any time not outstanding the greater of $330 million and 3.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to exceed $10,000,000, incurred 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 ordinary course of business not more than 180 days before or after 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 to pay the deferred purchase price of goods or Controlled JV Subsidiaryservices or progress payments in connection with such goods and services; provided, that such obligations are incurred in 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 connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not for speculative purposes and guarantees thereofin connection with the borrowing of money or any Swap Agreements;
(ku) Indebtedness representing deferred compensation to employees and directors of the Borrower or any Subsidiary incurred under (i) in the ERF Program ordinary course of business or (ii) in an aggregate amount at any time not to exceed $100,000,000 connection with the Transactions (including as a result of the cancellation or such vesting of outstanding options and other increased amount as may be approved by the Required Lendersequity-based awards in connection therewith);
(lv) without duplication 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 Indebtedness, 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 and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect to additional or contingent interest on obligations described in paragraphs (a) through (bb) above;
(dd) Indebtedness of the Loan Parties Borrower pursuant to (i) the First and their respective Subsidiaries a Half Lien Refinancing Notes in an aggregate principal amount that is not in excess of $1,025.0 million (plus any interest and Controlled JV Subsidiaries permitted hereunderpremium (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;
(mee) Indebtedness pursuant to any First Lien Refinancing Notes; provided that the Borrower shall Refinance Term 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) 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-OutsJunior Refinancing Indebtedness; provided that (x) 100% of the Net Cash Proceeds of such Guarantees are entered into Junior Refinancing Indebtedness must be used only by the Borrower to Refinance all or any portion of the Notes or any other Junior Financing (or all or any portion of any Permitted Refinancing Indebtedness in the ordinary course of business respect thereof) and (ii) Guarantees by Controlled JV Subsidiaries any refinancing, refunding, renewal, replacement, defeasance or Subsidiaries extension of any Junior Refinancing Indebtedness; provided that do 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 constitute Loan Parties 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 Indebtedness otherwise permitted hereunder;
(n) Indebtedness representing deferred compensation to current one or former directors, officers, employees, members more series of management, managers, and consultants senior unsecured notes or senior secured notes that will be secured by all or a portion of the Loan Parties Collateral on a pari passu or junior basis with the Obligations, that are issued or made in lieu of loans under the Incremental Revolving Facility and/or any 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 B Facility Maturity Date, (B) the aggregate principal amount of their respective Subsidiaries all Additional Notes issued pursuant to this clause (gg) shall not exceed (x) $500 million less (y) the aggregate principal amount of all loans under the Incremental Revolving Facility and Controlled JV Subsidiaries in Incremental Term Loans made after the ordinary course of business; and
Closing Date pursuant to Section 2.20 and clause (ox) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance of the foregoingdefinition of “Incremental Amount”, no Property-Level Subsidiary (C) such Additional Notes shall create, incur, assume or suffer to exist any Indebtedness that is recourse 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 Mortgage Recourse Carve-Outs.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 executio
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans Closing Date and Obligationsset forth on Schedule 6.01 and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with Holdings or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment or financing plans for Indebtedness of Holdings and the payment of insurance policy premiumsSubsidiaries pursuant to Swap Agreements permitted by Section 6.13;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance benefit of) any person providing workers' compensation, health, disability or other employee benefits or property, casualty or liability insurance to Holdings or any Subsidiary, pursuant to reimbursement or indemnification obligations to such agreementperson, or (ii) any Mortgage provided that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers' compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of a Loan Party the Borrower to any other Loan Party and/or Subsidiary and of any Subsidiary to the Borrower or Controlled JV any other Subsidiary, and provided that (i) Indebtedness of 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 to the Loan Parties shall be contractually subject to Section 6.04(a) and (ii) 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar current obligations under Mining Law or Environmental Law or with respect to a trade creditor incurred workers' compensation benefits, in the ordinary course of business and not evidenced by a note;
(h) Indebtedness incurred by a Loan Party or any of its Subsidiaries or Controlled 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, each case provided in the ordinary course of business, including those incurred to secure obligations under health, safety, mining and environmental obligations 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 services 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 workers compensation claims, health, disability credit 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 claimspurchase cards is extinguished within 60 days from its incurrence;
(i) Indebtedness of a Subsidiary acquired after the Closing Date or a corporation or other 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, 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 (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by 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 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;
(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 5.0% of Consolidated JV 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 Holdings 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 $100.0 million;
(l) Indebtedness of the Borrower and Alpha Natural Resources Capital Corp. pursuant to the Senior Notes in an aggregate principal amount that is not in excess of the sum of $175.0 million and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness in the form of Permitted Senior Debt Securities;
(m) Guarantees (i) by the Loan Parties of the Indebtedness of the Borrower and Alpha Natural Resources Capital Corp. described in paragraph (l), (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 Loan Party of Indebtedness otherwise expressly permitted hereunder of any Subsidiary that is not a Loan Party to the extent permitted by Section 6.04(b), (iv) by any Foreign Subsidiary that is not a Loan Party of Indebtedness of another Foreign 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 not more than 180 days before on ordinary business terms so long as such Indebtedness is permitted to be incurred under 6.01(a), (k) or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement (t); provided that Guarantees by any Loan Party under this Section 6.01(m) of any other Indebtedness of a fixed person that is subordinated to other Indebtedness of such person shall be expressly subordinated to the Obligations on terms consistent with those used, or capital asset to be used, for Subordinated Intercompany Debt;
(n) Indebtedness arising from agreements of Holdings 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 acquisition or disposition of any business, assets or Equity Interests, other than, in the case of a disposition by Holdings or any Subsidiary, Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Equity Interests 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);
(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 $30.0 million;
(q) Guarantees of Indebtedness or other obligations of contractors and suppliers of the Borrower or any Subsidiary of the Subsidiaries or Controlled JV Subsidiaryof persons who are not Affiliates of the Borrower and with whom the Borrower has an existing business relationship in support of financing or bonding arrangements for such contractors, or suppliers or such other person in order to finance connection with such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetbusiness relationship; provided that the obligations of Holdings, the Borrower or any Indebtedness incurred under of the Subsidiaries pursuant to this Section 7.02(i)(i6.01(q) shall not exceed $10.0 million at any time outstanding;
(r) Indebtedness supported by a Letter of Credit, in a principal amount not in excess of the stated amount of such Letter of Credit;
(s) Indebtedness consisting of (x) Installment Notes or (y) other Permitted Senior Debt Securities, which, in the case of this clause (y), shall be without recourse in an aggregate outstanding principal amount not in excess of $250.0 million; provided that the foregoing dollar limitation shall not apply if either (i) the Leverage Ratio on a Pro Forma Basis after giving effect to any Loan Parties and the incurrence of such Indebtedness is equal to or less than 1.50 to 1 or (ii) any Loan Party the Net Proceeds in an aggregate amount at any time not respect thereof are actually utilized to exceed $10,000,000, repay Term Borrowings;
(t) Indebtedness of Foreign Subsidiaries for working capital purposes incurred in the ordinary course of business not more than 180 days before or after 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 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 on ordinary course of business and not for speculative purposes and guarantees thereof;
(k) Indebtedness incurred under the ERF Program terms 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);10.0 million outstanding at any time
(lu) without duplication Indebtedness relating to the financing of insurance policy premiums; provided that (i) such insurance is for the benefit of the Loan Parties and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(u) shall not exceed $25,000,000 at any other Indebtedness, time outstanding; and
(v) all premiums premium (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses expenses, charges and charges with respect additional or contingent interest on obligations described in paragraphs (a) through (s) above. Notwithstanding anything to the contrary herein, Holdings shall not be permitted to incur any Indebtedness of the Loan Parties other than Indebtedness under Sections 6.01(b), (f) 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 1 contract
Indebtedness. CreateIncur, incurcreate, assume assume, become or suffer be liable in any manner with respect to, or permit to exist exist, any Indebtedness Indebtedness, other than the followingthan:
(a) the Loans and Obligations;
(b) 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 Revolving Loans in an aggregate principal amount thereof, and at any Permitted Refinancings thereoftime outstanding not to exceed $12,000,000 solely to the extent the Revolving Loans are subject to the Intercreditor Agreement;
(c) Monthly payment, installment or financing plans for Indebtedness existing on the payment date of insurance policy premiumsthis Agreement and described on Schedule 3.01 of the Disclosure Schedule;
(d) Indebtedness arising from (i) incurred or assumed for the purpose of financing all or any agreement providing for indemnification, adjustment part of purchase price or similar obligations the cost of acquiring any fixed asset (including contingent earn-out obligations) incurred through Capitalized Leases), in connection with an aggregate principal amount at 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 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, time outstanding not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofgreater than $100,000;
(e) intercompany Indebtedness of a Loan Party resulting from inter-company loans solely between (i) the Borrower and any Wholly-Owned Domestic Subsidiary Guarantor and (ii) Wholly-Owned Domestic Subsidiary Guarantors, in each case to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiarythe extent such Indebtedness is permitted by, and Indebtedness of 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 subject to, the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative AgentIntercompany Subordination Agreement;
(f) Indebtedness in respect of Banking ServicesGuarantees to the extent permitted pursuant to Section 6.03;
(g) trade payables and similar current obligations Seller Subordinated Debt in an aggregate principal amount at any time outstanding not to a trade creditor incurred in exceed $10,000,000 solely to the ordinary course of business and not evidenced by a noteextent 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 by a Loan Party or any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of creditnetting services, bank guaranteesoverdraft protection, bankers’ acceptances, warehouse receipts or similar instruments issued or created, or relating to obligations or liability incurredand other like services, in each case, incurred in the ordinary course Ordinary Course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsBusiness;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 Ordinary Course of business not more than 180 days before Business under performance, surety, statutory or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetappeal 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 respect excess of Swap Contracts designed the amount of the unpaid cost of, and shall be incurred only to hedge against defer the Borrower’s or any Subsidiary’s exposure to interest ratescost of, foreign exchange rates or commodities pricing risks such insurance for the year in which such Indebtedness is incurred in the ordinary course of business and not for speculative purposes and guarantees thereof;such Indebtedness is outstanding only during such year; LEGAL02/39661241v2LEGAL02/39709302v6
(k) Indebtedness incurred under in the ERF Program 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 at any time not to exceed $100,000,000 (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 such other increased amount as may be approved by the Required Lenders)cash management or related services are paid in full on a monthly basis;
(l) without duplication Indebtedness comprising Investments permitted under Section 6.06;
(m) accrual 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, feesor the payment of interest in kind, expenses and charges with respect to in each case, on Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries that otherwise constitutes Indebtedness permitted hereunderunder this Section 6.01;
(mn) 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) 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 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 foreign exchange rates and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do such Swap Contract does not constitute Loan Parties in respect of Indebtedness otherwise permitted hereundercontain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;
(no) Indebtedness representing deferred compensation Sponsor Subordinated Debt in an aggregate principal amount at any time outstanding not to current or former directors, officers, employees, members of management, managers, and consultants of exceed $470,000 solely to the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries in extent the ordinary course of businessSponsor Subordinated Debt is subject to the Sponsor Debt Subordination Agreement; and
(op) Indebtedness incurred unsecured Indebtedness, of a type not described above, not to exceed $250,000 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 aggregate at any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outstime outstanding.
Appears in 1 contract
Sources: Credit Agreement (LIVE VENTURES Inc)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the following:
(exclusive of trade debt) except in respect of (a) the Loans and Obligations;
; (b) Mortgage Indebtedness as Capitalized Lease Obligations consisting of the date hereof and listed on Schedule 5.07(b)Capital Lease of the wet sand plant located in ▇▇▇▇▇▇ County, Wisconsin plus additional Capitalized Lease Obligations in an aggregate amount at any renewals, amendments, modifications or extensions thereof that do time outstanding not increase the principal amount thereof, and any Permitted Refinancings thereof;
to exceed $28,750,000; (c) Monthly payment, installment or financing plans for the payment of insurance policy premiums;
Permitted Purchase Money Indebtedness; (d) Indebtedness arising from under any Hedge so long as such Indebtedness (except to the extent constituting “Hedge Liabilities” (as defined in the Revolving Credit Agreement)) is unsecured; (e) Indebtedness owing to any other Credit Party or Restricted Subsidiary thereof so long as any such Indebtedness owing to any Person that is not a Credit Party is subordinated pursuant to an agreement reasonably satisfactory to the Required Lenders; (f) 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 Refinancing Indebtedness in respect thereof; (h) Indebtedness in respect of workers’ compensation claims, property casualty or liability insurance, and self-insurance obligations, in each case in the ordinary course of business; (i) 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, (j) Indebtedness of the Parent Guarantor or any agreement 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 price, earnouts or similar obligations (including contingent earn-out obligations) , in each case, incurred or assumed in connection with any Investment or a Disposition permitted hereunder and under Section 7.1(b) or a Permitted Acquisition, (l) Indebtedness comprising guaranteesof the Parent Guarantor or any Restricted Subsidiary in connection with performance bonds, letters bid bonds, appeal bonds, bankers acceptances, insurance obligations, workers’ compensation claims, health or other types of credit, bank guarantiessocial security benefits, surety bonds, performance completion guarantees or other similar bonds and obligations, including self-bonding arrangements, issued by the Parent Guarantor or similar instruments securing a Restricted Subsidiary in the performance ordinary course of 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, so long as immediately before and after giving effect to the incurrence of any such agreementIndebtedness, 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) any Mortgage after giving effect to the incurrence of such Indebtedness incurred to financeand the use of proceeds therefrom, or assumed Parent Guarantor and its Restricted Subsidiaries shall be in connection with, an acquisition or Investment compliance on a Pro Forma Basis with the covenants then 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 effect set forth in Section 6.5 as of the last day of the fiscal quarter most recently ended on or prior to the date of entry into such incurrence of Indebtedness for which financial statements have been provided to Agent and the agreement Lenders pursuant to Section 9.7 or 9.8(a) (as applicable); 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 such acquisition any mandatory prepayments, offers to repurchase or Investmentredemptions (other than customary asset sale and change of control offers) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiaryuntil at least six months after the Maturity Date, and Indebtedness of 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 prior repayment in full of Senior Lien Obligations and the Obligations on pursuant to subordination terms reasonably satisfactory to the Administrative Required Lenders and the Revolving Agent;
, (fC) such Indebtedness in respect shall be unsecured and shall not be guaranteed by any person other than a Credit Party, (D) the aggregate amount of Banking Services;
(g) trade payables and similar current obligations Indebtedness permitted 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 any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset; provided that any Indebtedness be incurred under this Section 7.02(i)(i7.6(m) by Restricted Subsidiaries that are not Credit Parties shall not exceed $11,500,000 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) the Borrowing Agent 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); provided that (x) the Maximum Revolving Advance Amount (as defined in the Revolving Credit Agreement) shall be without recourse reduced by an amount equal to any Loan Parties the net proceeds of such notes and (iiy) any Loan Party in an aggregate amount at any time not to exceed $10,000,000if the Revolving Credit Agreement is no longer outstanding, incurred in the ordinary course of business not more than 180 days before or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement net proceeds of such fixed or capital asset;
(j) Indebtedness in respect of Swap Contracts designed notes shall be used to hedge against repay the Borrower’s or any Subsidiary’s exposure to interest ratesAdvances, 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 directorsthe Specified Note, officers, employees, members of management, managers, and consultants including interest payments thereon by the increase in the principal amount hereof in accordance with the terms of the Loan Parties and/or any of their respective Subsidiaries Specified Note 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-OutsSenior Lien Obligations.
Appears in 1 contract
Sources: Second Lien Credit and Security Agreement (Emerge Energy Services LP)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness of the Loans Company or any Subsidiary existing on the Closing Date (provided that any such Indebtedness in excess of $10,000,000 shall be set forth on Schedule 6.01) and Obligationsany Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Company or any Subsidiary);
(b) Mortgage Indebtedness as of created hereunder and under 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, other Loan Documents and any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Company or financing plans for the payment of insurance policy premiumsany Subsidiary pursuant to Swap Agreements permitted by Section 6.10;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Company or self-insurance any Subsidiary, pursuant to reimbursement or other indemnification obligations to such person, in each case in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers workers’ compensation claims, such obligations are reimbursed not later than 30 days following such incurrence;
(e) Indebtedness of the Company to any Subsidiary and of any Subsidiary to the Company or any other Subsidiary; provided that (i) Indebtedness of any Subsidiary that is not the Subsidiary Guarantor owing to the Loan 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 the Subsidiary Guarantor shall be made expressly subject to a note containing subordination provisions reasonably satisfactory to the Company and the Administrative Agent;
(i) Indebtedness (including Capitalized Lease Obligations) incurred by (i) any Subsidiary or Consolidated JV Subsidiary in respect of the Borrower that is not a Loan Party performance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case provided in the ordinary course of business not more than 180 days before or after the acquisitionbusiness, constructionincluding those incurred to secure health, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 safety 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 after 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 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 environmental obligations in the ordinary course of business and (ii) ordinary course Guarantees by Controlled JV Subsidiaries and any related credit support or Subsidiaries that suretyship arrangements so long as the same do not constitute Loan Parties in respect of Indebtedness otherwise permitted hereunderfor borrowed money or a Guarantee thereof;
(ng) Indebtedness representing deferred compensation to current arising from the honoring by a bank or former directorsother financial institution of a check, officers, employees, members draft or similar instrument drawn against insufficient funds in the ordinary course of management, managers, and consultants of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries business or other cash management services in the ordinary course of business; andprovided 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;
(oi) 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 ordinary course aggregate amount of business 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 performance, surety, statutory Section 6.03) would not exceed (x) the greater of $[*] and appeal bonds. In furtherance [*]% of Consolidated Total Assets as of the foregoingend 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 Property-Level Subsidiary Default or Event of Default shall createhave occurred and be continuing or would result therefrom, incur(B) immediately after giving effect to such acquisition, assume merger or suffer to exist 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 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, 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 recourse to any Loan Party, other than Mortgage Recourse Carve-Outs.permitted under Section 6.03;
Appears in 1 contract
Sources: Credit Agreement (Norwegian Cruise Line Holdings Ltd.)
Indebtedness. Create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness of the Loans Company and Obligationsits Subsidiaries under the Loan Documents;
(b) Mortgage Indebtedness as of (i) outstanding on the date hereof Closing Date and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, 7.03(b) and any Permitted Refinancings thereofRefinancing thereof and (ii) intercompany Indebtedness outstanding on the Closing Date;
(c) Monthly paymentGuarantees by the Company and its Subsidiaries in respect of Indebtedness of the Company or any Subsidiary otherwise permitted hereunder; provided that (A) no Guarantee by any Subsidiary of any Junior Financing shall be permitted unless such Subsidiary shall have also provided a Guarantee of the Obligations substantially on the terms set forth in the Guaranty, installment (B) if the Indebtedness being Guaranteed is subordinated to the 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 and (C) any Guarantee of any Incremental Equivalent Debt, any Credit Agreement Refinancing Indebtedness or financing plans for any Permitted Ratio Debt (or any Permitted Refinancing in respect thereof) shall only be permitted if it meets the payment requirements of insurance policy premiums;the respective definitions (and component definitions) thereof and clause (s), (t) or (x) of this Section 7.03, as applicable; 193389590_5
(d) Indebtedness arising from (i) any 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 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 Company or any Subsidiary owing to the date of entry into the agreement for such acquisition Company or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Partythe extent permitted by Section 7.02; provided that any all such Indebtedness of a any Loan Party owed to a Subsidiary or Controlled JV Subsidiary any Person that is not a Loan Party shall be contractually subject to the subordination terms set forth in the Intercompany Note;
(i) Attributable Indebtedness and other Indebtedness (including Finance Leases) of the Company and its Subsidiaries financing the acquisition, construction, repair, replacement or improvement of fixed or capital assets (including reconstruction, refurbishment, renovation and development of real property); provided that such Indebtedness is incurred concurrently with or within two hundred and seventy (270) days after the applicable acquisition, construction, repair, replacement or improvement, (ii) Attributable Indebtedness of the Company and its Subsidiaries arising out of sale-leaseback transactions permitted by Section 7.05(f) and (iii) any Permitted Refinancing of any Indebtedness set forth in the immediately preceding clauses (i) and (ii);
(f) Indebtedness in respect of Swap Contracts designed to hedge against interest rates, foreign exchange rates risks or commodities pricing incurred in the ordinary course of business and not for speculative purposes;
(g) Indebtedness of the Company or any Subsidiary (A) assumed in connection with any Permitted Acquisition (provided that such Indebtedness is not incurred in contemplation of such Permitted Acquisition) or (B) incurred to finance a Permitted Acquisition and, in the case of either (A) or (B), any Permitted Refinancing thereof; provided, (x) no Default shall exist or result therefrom and (y) if such Indebtedness is (1) secured on a pari passu basis with or senior to (in the case of clause (A)) the Obligations, the Company and its Subsidiaries will be in Pro Forma Compliance with a Consolidated Senior Secured Net Leverage Ratio of no greater than 3.50:1.00 and (2) unsecured, the Company and its Subsidiaries will be in Pro Forma Compliance with the Financial Covenant; provided, further, in the case of clause (B) above, such Indebtedness (i) will not mature prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time of the issuance of such Indebtedness, (ii) will not have mandatory prepayment or mandatory amortization prepayments (other than asset sale and change of control mandatory offers to repurchase customary for high-yield debt securities) prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time of the issuance of such Indebtedness (other than, in the case of clause (1) of this proviso, for annual nominal amortization payments not to exceed 1% of the original aggregate principal amount of such Indebtedness), (iii) in the case of clause (1) of this proviso, shall be subject to a First Lien Intercreditor Agreement, (iv) if incurred by a Non-Loan Party, shall not exceed in aggregate principal amount for all Indebtedness of Non-Loan Parties incurred pursuant to this clause (g) the greater of (i) $65,000,000 and (ii) 2.0% of Total Assets at any time outstanding, (v) in the case of clause (A) above, such Indebtedness is secured only by Liens permitted pursuant to Section 7.01(p)(x), and (vi) in the case of clause (B) above, the terms and conditions of such Indebtedness are not materially more restrictive (taken as a whole) in respect to the Company and its Subsidiaries than those set forth in this Agreement;
(h) Indebtedness representing deferred compensation to employees of the Company and its Subsidiaries incurred in the ordinary course of business;
(i) Indebtedness consisting of promissory notes (A) issued by any Loan Party to current or former officers, directors, consultants and employees, their respective estates, heirs, permitted transferees, spouses or former spouses to finance the purchase or redemption of Equity Interests of the Company permitted by Section 7.06; provided that (i) such Indebtedness shall be subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
Agent and (fii) Indebtedness the aggregate amount of all cash payments (whether principal or 193389590_5 interest) made by the Loan Parties in respect of Banking Services;
such notes in any calendar year, when combined with the aggregate amount of Restricted Payments made pursuant to Section 7.06(f) in such calendar year, shall not exceed $40,000,000, provided that any unused amounts in any calendar year may be carried over to succeeding calendar years, so long as the aggregate amount of all cash payments made in respect of such notes in any calendar year (gafter giving effect to such carry forward), when aggregated with the aggregate amount of Restricted Payments made pursuant to Section 7.06(f) trade payables in such calendar year (after giving effect to such carry forward), shall not exceed $50,000,000; provided, further, that such amount in any calendar year may be increased by an amount not to exceed the remainder of (x) the sum of (1) the amount of Net Cash Proceeds of issuances of Equity Interests to the extent that such Net Cash Proceeds shall have been actually received by OSI through a capital contribution of such Net Cash Proceeds by the Company (and similar to the extent not used to make an Investment pursuant to Section 7.02(m) or (t), prepay Junior Financings pursuant to Section 7.12(a)(v), or make a Restricted Payment pursuant to Section 7.06(f) or counted towards the Cumulative Growth Amount), in each case to employees, directors, officers, members of management or consultants of any Borrower (or any direct or indirect parent of OSI) or of its Subsidiaries that occurs after the Closing Date plus (2) the net cash proceeds of key man life insurance policies received by the Company or any of its Subsidiaries after the Closing Date less (y) the aggregate amount of all cash payments made in respect of any promissory notes pursuant to this Section 7.03(i) after the Closing Date with the net cash proceeds described in preceding clause (x) (2) less (z) the aggregate amount of all Restricted Payments made after the Closing Date in reliance on the last proviso appearing in Section 7.06(f), and (B) issued by Employment Participation Subsidiaries to current obligations to a trade creditor incurred or former restaurant employees, and development partners of Employment Participation Subsidiaries as consideration in respect of repurchases, redemptions or acquisitions of Equity Interests in Employment Participation Subsidiaries permitted under Section 7.06(i) in the ordinary course of business and not evidenced by a noteconsistent with past practice;
(hj) Indebtedness incurred by the Borrowers or their respective Subsidiaries in a Loan Party Permitted Acquisition, any other Investment expressly permitted hereunder or any Disposition, in any such case solely constituting indemnification obligations or obligations in respect of purchase price or other similar adjustments;
(k) Indebtedness consisting of obligations of the Company or its Subsidiaries under deferred compensation or other similar arrangements incurred by such Person in connection with the Transaction and Permitted Acquisitions or any other Investment expressly permitted hereunder;
(l) Cash Management Obligations and other Indebtedness in respect of netting services, overdraft protections and similar arrangements in each case in connection with deposit accounts;
(m) Indebtedness of the Company and its Subsidiaries in an aggregate principal amount not to exceed the greater of (i) $200,000,000 and (ii) 6.0% of Total Assets at any time outstanding;
(n) Indebtedness consisting of (a) the financing of insurance premiums or (b) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(o) Indebtedness incurred by the Company or any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts acceptances or similar instruments issued or created, or relating to obligations or liability incurred, created in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers 193389590_5 compensation claims; provided that any reimbursement obligations in respect thereof are reimbursed within 30 days following the incurrence thereof;
(ip) Indebtedness (including Capitalized Lease Obligations) incurred obligations in respect of performance, bid, stay, custom, appeal and surety bonds and other obligations of a like nature and performance and completion guarantees and similar obligations provided by (i) any Subsidiary Borrower or Consolidated JV Subsidiary any of the Borrower that is not a Loan Party its Subsidiaries or obligations in respect of letters of credit, bank guarantees or similar instruments related thereto, in each case in the ordinary course of business not more than 180 days before or after consistent with past practices;
(q) Indebtedness of the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement Borrowers and their respective Subsidiaries supported by a Letter of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV SubsidiaryCredit, in order a principal amount not to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement exceed the face amount of such fixed or capital asset; provided that any Letter of Credit;
(r) unsecured Indebtedness incurred under this Section 7.02(i)(i) shall be without recourse to any Loan Parties of the Borrowers and (ii) any Loan Party their respective Subsidiaries in the form of letters of credit, in an aggregate outstanding principal amount at any time not to exceed $10,000,00050,000,000;
(s) Indebtedness of any Borrower in respect of one or more series of senior secured first lien notes or unsecured term loans or notes that are issued in a public offering, Rule 144A or other private placement, or a bridge financing in lieu of the foregoing that otherwise converts into permanent Incremental Equivalent Debt (as defined below), that are issued or made in lieu of Incremental Term Commitments pursuant to an indenture or a note purchase agreement or otherwise (the “Incremental Equivalent Debt”); provided that (i) the aggregate principal amount of all Incremental Equivalent Debt issued pursuant to this Section 7.03(s) shall not, together with all Revolving Commitment Increases and/or Incremental Term Commitments incurred after the Closing Date, exceed the Available Incremental Amount (provided that, if such Incremental Equivalent Debt is unsecured, the incurrence of any such Indebtedness pursuant to clause (B) of the definition of Available Incremental Amount shall be subject to the Company’s compliance with the Financial Covenant as of the last day of the Test Period most recently ended for which financial statements have been delivered to the Lenders under Section 6.01(a) and (b), after giving effect to such incurrence on a Pro Forma Basis, in lieu of the Consolidated Senior Secured Net Leverage Ratio test set forth in such clause (B)), (ii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence, (iii) as of the date of determination, such Incremental Equivalent Debt shall not mature earlier than the Maturity Date with respect to the Loans and Commitments in effect as of the effective date of such Incremental Equivalent Debt (prior to giving effect to any extensions thereof occurring after the Maturity Date), (iv) the documentation with respect to such Incremental Equivalent Debt contains no mandatory prepayment, repurchase or redemption provisions prior to the Latest Maturity Date then in effect except with respect to change of control, asset sale and casualty event mandatory offers to purchase and customary acceleration rights after an event of default that are customary for financings of such type, (v) such Incremental Equivalent Debt may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis (other than pursuant to asset sale and change of control provisions customary for high-yield debt securities)) in any voluntary or mandatory prepayments hereunder, as specified in the ordinary course of business applicable Incremental Amendment, (vi) such Incremental Equivalent Debt shall not more be subject to any Guarantee by any Person other than 180 days before or after 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 (vii) if such Incremental Equivalent Debt is secured, the obligations in respect thereof shall not be secured by any Lien on any asset of the Company or any Subsidiary or Controlled JV Subsidiaryother than any asset constituting Collateral, (viii) if such Incremental Equivalent Debt is secured, the security agreements relating to such Incremental Equivalent Debt shall be substantially the same as the Collateral Documents (with such differences as are reasonably satisfactory to the Administrative Agent), (ix) if such Incremental Equivalent Debt is secured on a pari passu basis with the Obligations, then such Incremental Equivalent Debt shall be subject to a First Lien Intercreditor Agreement, and (x) the documentation with respect to any Incremental Equivalent Debt shall contain terms and conditions not materially 193389590_5 more restrictive (taken as a whole) in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement respect of such fixed or capital assetthe Company and its Subsidiaries than those set forth in this Agreement;
(jt) Credit Agreement Refinancing Indebtedness;
(u) unsecured Indebtedness of the Company or any Subsidiary in an aggregate principal amount not to exceed the amount of Net Cash Proceeds of issuances of, or contributions in respect of, Equity Interests of the Company (other than proceeds of issuances of Disqualified Equity Interests) after the Closing Date to the extent that such Net Cash Proceeds shall have been actually received by OSI (through a capital contribution of such Net Cash Proceeds by the Company to OSI) on or prior to such date of determination and to the extent not used to make payments under Section 7.03(i), make Investments pursuant to Section 7.02(t), make Restricted Payments pursuant to Section 7.06(f) or (h), or count towards the Cumulative Growth Amount; provided, (i) such Indebtedness will not mature prior to the date that is ninety-one (91) days after the then Latest Maturity Date at the time of the issuance of such Indebtedness, (ii) such Indebtedness will not have mandatory prepayment or mandatory amortization, redemption, sinking fund or similar prepayments prior to the date that is ninety-one (91) days after the then Latest Maturity Date at the time of the issuance of such Indebtedness, (iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such incurrence and (iv) the terms and conditions of such Indebtedness shall be not materially more restrictive (taken as a whole) 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 Company and its Subsidiaries than those set forth in the ordinary course of business and not for speculative purposes and guarantees thereofthis Agreement;
(kv) Indebtedness incurred under the ERF Program of Foreign Subsidiaries in an aggregate principal amount at any time not to exceed $100,000,000 (or such other increased amount as may be approved by the Required Lenders)at any time outstanding;
(lw) 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 expenses, charges and charges with respect to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunderadditional or contingent interest on obligations described in clauses (a) through (v) above;
(mx) (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 so long as no Default exists or would result therefrom, Permitted Ratio Debt and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties in respect of Indebtedness otherwise permitted hereunderPermitted Refinancings thereof;
(ny) the 2025 Convertible Notes in an aggregate outstanding principal amount not to exceed $230,000,000;
(z) any Indebtedness representing deferred compensation pursuant 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 businessPermitted Convertible Notes Call Transaction; and
(oaa) unsecured Indebtedness incurred under the 2029 Senior Notes 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.an aggregate outstanding
Appears in 1 contract
Indebtedness. CreateThe Borrower will not, and will not permit any Subsidiary to, create, incur, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and Secured Obligations;
(b) Mortgage Indebtedness as of existing on the date hereof and listed on set forth in Schedule 5.07(b)6.01 and extensions, renewals and replacements of any renewals, amendments, modifications or extensions thereof such Indebtedness with Indebtedness of a similar type that do does not increase the outstanding principal amount thereof, and any Permitted Refinancings thereof;
(c) Monthly payment, installment Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or financing plans for any other Subsidiary; provided that Indebtedness of any Subsidiary that is not a Loan Party to any Loan Party shall be subject to the payment of insurance policy premiumslimitations set forth in Section 6.04(d);
(d) Indebtedness arising from (i) Guarantees by the Borrower of Indebtedness of any agreement providing for indemnificationSubsidiary and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary, adjustment (ii) Guarantees by the Borrower or any of purchase price its Subsidiaries of obligations of any Person under leases, supply contracts and other contracts or similar obligations warranties and indemnities, in each case, not constituting Indebtedness of such Person, which have been or are undertaken or made in the ordinary course of business by the Borrower or any of its Subsidiaries and (including contingent earn-out obligationsiii) incurred in connection Guarantees with any Investment or Disposition permitted hereunder and Indebtedness comprising guaranteesrespect to surety, letters of credit, bank guaranties, surety bondsappeal, performance bonds and similar bonds or similar instruments securing statutory obligations incurred by the performance pursuant to such agreement, Borrower or (ii) any Mortgage Indebtedness incurred to finance, or assumed of its Subsidiaries in connection with, an acquisition or Investment in a Hotel Property (or part the ordinary course 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofbusiness;
(e) Indebtedness of a Loan Party to any other Loan Party and/or the Borrower or any Subsidiary incurred to finance the acquisition, construction or Controlled JV Subsidiaryimprovement of any fixed or capital assets, including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness of a Subsidiary or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Partythat do not increase the outstanding principal amount thereof; provided that any (i) such Indebtedness is incurred prior to or within ninety (90) days after such acquisition or the completion of a Loan Party to a Subsidiary such construction or Controlled JV Subsidiary that is improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause (e) shall not a Loan Party shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agentexceed $15,000,000 at any time outstanding;
(f) Indebtedness of the Borrower or any Subsidiary as an account party in respect of Banking Servicestrade letters of credit;
(g) trade payables Indebtedness of any Person that is acquired as a Subsidiary after the Effective Date; provided that (i) such Indebtedness exists at the time such Person becomes a Subsidiary and similar current obligations to is not created in contemplation of or in connection with such Person becoming a trade creditor incurred in Subsidiary and (ii) the ordinary course aggregate outstanding principal amount of business and such Indebtedness, does not evidenced by a noteexceed $20,000,000;
(h) Indebtedness Permitted Seller Debt in an aggregate principal amount not exceeding $5,000,000 at any one time outstanding;
(i) in each case to the extent (if any) that such obligations constitute Indebtedness, (i) customary indemnification obligations, purchase price or other similar adjustments in connection with Permitted Acquisitions and dispositions permitted under this Agreement, (ii) obligations under deferred compensation or other similar arrangements incurred by a Loan Party in connection with acquisitions and other Investments permitted under this Agreement, (iii) reimbursement or indemnification obligations owed to any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankersPerson providing workers’ acceptances, warehouse receipts or similar instruments issued or created, or relating to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claimscompensation, health, disability or other employee benefits or property, casualty or liability insurance insurance, (iv) obligations in respect of performance bonds, bid bonds, appeal bonds, surety bonds, performance and completion guarantees and similar obligations, or self-insurance obligations in respect of letters of credit, bank guarantees 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 similar instruments related thereto, in each case provided in the ordinary course of business not more than 180 days before business, (v) obligations for deferred payment of insurance premiums or after the acquisitionarising under customary indemnity agreements to title insurers, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary(vi) take-or-pay obligations contained in supply arrangements; provided, in order to finance each case, that such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 obligation arises in the ordinary course of business and not for speculative purposes in connection with the obtaining of financing;
(j) Indebtedness owed to any bank in respect of any overdrafts and guarantees thereofrelated liabilities arising from treasury, depository and cash management services or in connection with any automated clearing house transfers of funds;
(k) Indebtedness incurred under of Foreign Subsidiaries not otherwise described herein, not exceeding, the ERF Program in an aggregate principal amount of $5,000,000 (or the equivalent foreign currency equivalent of such amount) at any one time not to exceed $100,000,000 (or such other increased amount as may be approved by the Required Lenders)outstanding;
(l) without duplication accrual 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, feesor the payment of interest in kind, expenses and charges with respect to in each case, on Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries otherwise permitted hereunder;
(m) (i) Guarantees by Indebtedness constituting an Investment permitted under Section 6.04 or 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 Sale and (ii) Guarantees by Controlled JV Subsidiaries or Subsidiaries that do not constitute Loan Parties in respect of Indebtedness otherwise Leaseback Transactions permitted hereunderunder Section 6.10;
(n) Indebtedness representing deferred compensation to current of the Borrower or former directors, officers, employees, members any Subsidiary secured by a Lien on any asset of management, managersthe Borrower or any Subsidiary; provided that the aggregate outstanding principal amount of Indebtedness permitted by this clause (n) shall not in the aggregate exceed $10,000,000 at any time, and consultants extensions, renewals and replacements of any such Indebtedness with Indebtedness of a similar type that does not increase the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries in the ordinary course of businessoutstanding principal amount thereof; and
(o) unsecured Indebtedness incurred (including unsecured Subordinated Indebtedness to the extent subordinated to the Secured Obligations on terms reasonably acceptable to the Administrative Agent), to the extent not otherwise permitted under this Section 6.01; provided that (a) both immediately prior to and after giving effect (including pro forma effect) to the incurrence of such Indebtedness, (1) no Default or Event of Default shall exist or result therefrom and (2) the Borrower is in compliance with the ordinary course covenants contained in Section 6.12, (b) such Indebtedness matures after, and does not require any scheduled amortization or other scheduled payments of business under performanceprincipal prior to, suretythe date that is 91 days after the Maturity Date (it being understood that any provision requiring an offer to purchase such Indebtedness as a result of a change of control or asset sale provision shall not violate the foregoing restriction), statutory and appeal bonds. In furtherance (c) such Indebtedness is not guaranteed by any Subsidiary of the foregoing, no Property-Level Subsidiary shall create, incur, assume or suffer to exist any Indebtedness that is recourse to any Loan Party, Borrower other than Mortgage Recourse Carve-Outsthe Subsidiary Guarantors (which guarantees, if such Indebtedness is subordinated, shall be expressly subordinated to the Secured Obligations on terms not less favorable to the Lenders than the subordination terms of such Subordinated Indebtedness), (d) the financial covenants or events of default applicable to such Indebtedness are not more onerous or more restrictive in any material respect (taken as a whole), as determined in good faith by the board of directors of the Borrower than the applicable financial covenants and events of default set forth in this Agreement and (e) (1) such Indebtedness shall not be subject to a dollar limitation so long as both immediately prior to and after giving effect (including pro forma effect) to the incurrence of such Indebtedness, the Leverage Ratio is less than 2.50 to 1.00 (and the Borrower shall have delivered to the Administrative Agent a certificate of a Financial Officer of the Borrower to such effect, together with all relevant financial information and calculations requested by the Administrative Agent in respect thereof) and (2) in all other cases, the aggregate principal amount of any such Indebtedness does not exceed $15,000,000 at any time, and extensions, renewals and replacements of any such Indebtedness with Indebtedness of a similar type that does not increase the outstanding principal amount thereof.
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01 to the Original Credit Agreement) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage (i) Indebtedness as of created hereunder (including pursuant to Section 2.21) and under the date hereof other Loan Documents and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and (ii) any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 Loan Party incurred pursuant to this Section 6.01(e) shall be subordinated 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 Agent 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 respect past practice or industry practices, including those incurred to reimbursement-type secure health, safety and environmental obligations regarding workers compensation claimsin 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 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset 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 Controlled JV 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 order an aggregate principal amount that, immediately after giving effect to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement the incurrence of such fixed or capital asset; provided that Indebtedness and the use of proceeds thereof, together with the aggregate principal amount of any other Indebtedness incurred under outstanding pursuant to this Section 7.02(i)(i) shall be without recourse to any Loan Parties 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 Loan Party 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 time not to exceed $10,000,000Subsidiary 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 more greater than 180 days before or after 3.10 to 1.00; provided, that (x) the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement aggregate principal amount of a fixed or capital asset Indebtedness outstanding under this clause (q)(i) at such time that is incurred by a Subsidiary other than a Subsidiary Loan PartyParty shall not exceed, Borrower or 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 or Controlled JV SubsidiaryLoan 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 order the form of term loans shall be subject to finance such acquisitionthe last paragraph of Section 6.02, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital asset;
and (jii) any Permitted Refinancing 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;
(ki) 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 under by a Subsidiary other than a Subsidiary Loan Party shall not exceed, when taken together with the ERF Program in an aggregate principal 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 anyIndebtedness outstanding pursuant to Section 6.01(q)(i), interest 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 (including post-petition interest and payment in kind interest), accretion or amortization y) the incurrence of original issue discount, fees, expenses and charges with respect any Indebtedness for borrowed money pursuant to Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
this clause (mr)(i) (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries shall be subject to the extent consisting last paragraph 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 this Section 6.01, and (ii) Guarantees 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 Controlled JV 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 or 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 do are not constitute 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 of Indebtedness otherwise permitted hereunderthereof;
(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
(ou) Indebtedness incurred in the ordinary course of business under performance, surety, statutory and appeal bonds. In furtherance in respect of obligations of the foregoingBorrower or any Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services; provided, no Property-Level 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 shall create, incur, assume or suffer 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 exist 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 is recourse 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 Loan PartyPermitted 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 than Mortgage Recourse Carve-Outs.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. CreateIncur, incurcreate, assume or suffer to exist or otherwise become liable in respect of any Indebtedness other than Indebtedness, except that the followingfollowing shall be permitted:
(a) Indebtedness under the Loans and ObligationsLoan Documents;
(b) Mortgage Indebtedness as existing on the Effective Date and set forth in Schedule 6.01 and extensions, renewals and replacements of the date hereof and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof such Indebtedness with Indebtedness of a similar type that do does not increase the outstanding principal amount thereof, and any Permitted Refinancings thereof;
(c) Monthly paymentIndebtedness in respect of Capital Lease Obligations and Purchase Money Obligations for fixed or capital assets within the limitations set forth in Section 6.02(d), installment or financing plans for and extensions, renewals and replacements of any such Indebtedness that do not increase the payment outstanding principal amount thereof; provided, however, that the aggregate principal amount of insurance policy premiumsall Indebtedness permitted by this Section 6.01(c) shall not exceed $15,000,000 at any one time outstanding;
(d) Indebtedness arising from (i) any 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 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 Borrower or any Regulated Insurance Company under Swap Obligations to the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofextent permitted by Section 6.06;
(e) Indebtedness constituting Investments permitted by Section 6.04(d);
(f) Indebtedness arising from the honoring by a bank or other financial institution of a Loan Party check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its incurrence;
(g) (i) Indebtedness resulting from the endorsements of instruments for deposit in the ordinary course of business, (ii) to the extent constituting Indebtedness, obligations in respect of purchasing card and credit card arrangements and (iii) Indebtedness of the Borrower or any Subsidiary in respect of performance bonds, appeal bonds, surety bonds and similar obligations, in each case, incurred in the ordinary course of business;
(h) any repurchase obligations of the Borrower or any Regulated Insurance Company under any Repurchase Agreement and any Repurchase Liability of the Borrower or any Regulated Insurance Company; provided, however, that the aggregate amount of all such obligations and Repurchase Liabilities permitted by this Section 6.01(h) shall not exceed $150,000,000 at any time outstanding;
(i) Indebtedness which represents an extension, refinancing or renewal of any of the Indebtedness described in Section 6.01(j), (k) or (l); provided that, (i) the aggregate principal amount of such Indebtedness is not greater than the aggregate principal amount of the Indebtedness so extended, refinanced or renewed, (ii) the interest rate of such Indebtedness is not higher than the interest rate of the Indebtedness so extended, refinanced or renewed (other than an increase of such interest rate to the then current market interest rate for such type of Indebtedness, as applicable), (iii) such Indebtedness may be secured by the Liens that secured the Indebtedness so extended, refinanced or renewed; provided such Liens do not extend to any other Loan Party and/or additional property of the Borrower or any Subsidiary or Controlled JV Subsidiary, and (iv) no Subsidiary is required to become obligated with respect thereto unless previously obligated on such refinanced Indebtedness, (v) such Indebtedness does not result in a shortening of a Subsidiary the maturity of the Indebtedness so extended, refinanced or Controlled JV Subsidiary to any other Subsidiary or Controlled JV Subsidiary and/or any Loan Party; provided that renewed, (vi) the terms of any such Indebtedness are not less favorable to the obligor thereunder than the original terms of a Loan Party to a Subsidiary the Indebtedness so extended, refinanced or Controlled JV Subsidiary renewed and (vii) if the Indebtedness that is not a Loan Party shall be contractually extended, refinanced or renewed was subordinated in right of payment to the Obligations, then the terms and conditions of the extension, refinancing or renewal Indebtedness must include subordination terms and conditions that are at least as favorable to the Lenders as those that were applicable to the Indebtedness so extended, refinanced or renewed;
(j) Indebtedness of a Person that becomes a Subsidiary or Indebtedness attaching to assets that are acquired by the Borrower or any of its Subsidiaries, in each case after the Effective Date in connection with a Permitted Acquisition, and any extensions, refinancings and renewals of such Indebtedness in accordance with Section 6.01(i); provided that (i) such Indebtedness existed at the time such Person became a Subsidiary or at the time such assets were acquired and, in each case, was not created in contemplation of or in connection with such Permitted Acquisition, (ii) such Indebtedness is not guaranteed in any respect by the Borrower or any Subsidiary (other than by any such Person that so becomes a Subsidiary), (iii) no Default or Event of Default has occurred and is continuing prior repayment to the assumption of such Indebtedness or would arise after giving effect (including giving effect on a pro forma basis) thereto and (iv) the sum of the aggregate principal amount of Indebtedness permitted by this clause (j) and clause (k) below shall not exceed $20,000,000 at any time outstanding;
(k) unsecured Indebtedness in full respect of obligations to make Deferred Acquisition Payments, and extensions, refinancings and renewals of such Indebtedness in accordance with Section 6.01(i); provided that the sum of the aggregate amount of Indebtedness permitted by this clause (k) and clause (j) above shall not exceed $20,000,000 at any time outstanding; provided further that, if the aggregate amount of all such obligations to make Deferred Acquisition Payments exceeds $10,000,000 at any one time, then such excess amount shall be subordinated to the Obligations on terms and conditions, and pursuant to documentation, reasonably satisfactory to the Administrative Agent; provided, further, that any payments in respect of such Indebtedness shall be subject to Sections 6.07(b) and 6.13(a)(iv);
(fl) in the case of Reliant, the Reliant Indebtedness and any extension, refinancing or renewal of any of such Reliant Indebtedness in accordance with Section 6.01(i); provided that (i) the aggregate principal amount of the Reliant Indebtedness shall not exceed $1,500,000 outstanding at any time, and (ii) any payments in respect of Banking Servicessuch Reliant Indebtedness shall be subject to Section 6.13(a)(iii);
(gm) trade payables and similar current Indebtedness of ACAI with respect to the ACAI Preferred Stock;
(n) with respect to any Specified Life Settlement Subsidiary, any Indebtedness or obligations to a trade creditor of such Specified Life Settlement Subsidiary; provided that neither the Borrower nor any Subsidiary shall be liable, directly or indirectly, for any such Indebtedness or obligations or otherwise give security therefor;
(o) the Reliant Deferred Acquisition Payment;
(p) FHLB Loans incurred in the ordinary course of business and on customary terms and conditions; provided that the aggregate principal amount of Indebtedness permitted by this clause (p) shall not evidenced by a noteexceed $20,000,000 at any time outstanding;
(hq) Indebtedness incurred Guarantees by a Loan Party or any of its Subsidiaries or Controlled 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 in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 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 hereunder of the Loan Parties Borrower or any other Subsidiary of the Borrower; provided, that if the Indebtedness that is being guaranteed is unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the Obligations; provided further that the aggregate principal amount of Guarantees permitted by this clause (q) shall not exceed $10,000,000 at any of their respective Subsidiaries and Controlled JV Subsidiaries in the ordinary course of businesstime outstanding; and
(or) other unsecured 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 Borrower in an aggregate principal amount not exceeding $10,000,000 at any Indebtedness that is recourse to any Loan Party, other than Mortgage Recourse Carve-Outstime outstanding.
Appears in 1 contract
Indebtedness. CreateEach of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any time create, incur, assume or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and The Obligations;
(b) 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 (i) any agreement providing for indemnificationof a Loan Party to another Loan Party, 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any wholly owned Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 Party, or (iii) of any Foreign Subsidiary to a Subsidiary or Controlled JV Subsidiary that is not a Loan Party shall be contractually another Foreign Subsidiary, which is, in any case, subordinated in right accordance with the provisions of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative AgentSection 7.11;
(fc) Indebtedness in respect of Banking Services;
(g) trade payables and similar current obligations owed 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, bank guarantees, bankersPerson providing workers’ acceptances, warehouse receipts or similar instruments issued or created, or relating to obligations or liability incurred, in the ordinary course of business, including in respect of workers compensation claimscompensation, health, disability or other employee benefits or property, casualty or liability insurance insurance, pursuant to reimbursement or self-insurance or other Indebtedness with respect indemnification obligations to reimbursement-type obligations regarding workers compensation claims;
(i) Indebtedness (including Capitalized Lease Obligations) such person, in each case 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 after business;
(d) Indebtedness owed to any Person in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement ordinary course of a fixed or capital asset incurred business;
(e) Indebtedness of the Borrower’s Foreign Subsidiaries and any Guaranty by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetIndebtedness;
(jf) 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 unsecured Indebtedness of the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
(m) (i) Guarantees Borrower to First National Bank of Pennsylvania evidenced by a Loan Party the Demand Note; provided, that the form of Indebtedness of Property-Level Subsidiaries Demand Note is acceptable 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 Agent in the ordinary course exercise 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 businessits reasonable discretion; and
(og) any other existing Indebtedness 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 in after 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-OutsClosing Date.
Appears in 1 contract
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(ai) Indebtedness existing on the Loans Closing Date (provided that any Indebtedness that is in excess of $2,000,000 individually or $10,000,000 in the aggregate shall only be permitted under this clause (a)(i) to the extent such Indebtedness is set forth on Schedule 6.01) and Obligationsany Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary) and (ii) intercompany Indebtedness existing on the Closing Date; provided that any Indebtedness of the Borrower or a Subsidiary Loan Party to any Subsidiary that is not the Borrower or a Subsidiary Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly paymentIndebtedness of the Borrower or any Subsidiary pursuant to Swap Agreements entered into to protect the Borrower and its Subsidiaries from fluctuations in interest rates, installment or financing plans for the payment of insurance policy premiumscurrency exchange rates and commodity prices;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (including contingent earn-out obligations) incurred obligations in connection with any Investment or Disposition permitted hereunder and Indebtedness comprising guarantees, respect of letters of credit, credit or bank guaranties, surety bonds, performance bonds guarantees or similar instruments securing for the performance 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 agreementperson, or (ii) any Mortgage in each case, in the ordinary course of business; provided, that upon the incurrence of Indebtedness incurred with respect to financereimbursement obligations regarding workers’ compensation claims, 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, such obligations are reimbursed not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for later than 30 days following such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereofincurrence;
(e) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or any other Subsidiary; provided, 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 Holdings and the Subsidiaries, (i) Indebtedness of any Subsidiary that is not the Borrower or a Subsidiary Loan Party owing to the Borrower or any Subsidiary Loan Party shall be subject to Section 6.04(b) or (x) and (ii) Indebtedness of the Borrower or any Subsidiary Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 Subsidiary Loan Party (the “Subordinated Intercompany Debt”) shall be contractually subordinated in right of payment to the prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Servicesperformance bonds, bid bonds, appeal bonds, surety bonds and completion guarantees and similar obligations, in each case, provided in the ordinary course of business, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) trade payables and Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar current obligations to a trade creditor incurred instrument drawn against insufficient funds in the ordinary course of business and not evidenced by a noteor other cash management services in the ordinary course of business;
(hi) 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, 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, (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 Borrower shall be in Pro Forma Compliance;
(i) Capital 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(b), and any Permitted Refinancing Indebtedness in respect thereof;
(j) Capital Lease Obligations, mortgage financings and other purchase money indebtedness incurred by the Borrower or any Subsidiary in an amount not to exceed $25,000,000 per year to finance New Restaurants or equipment to be used in restaurants. Notwithstanding anything to the contrary, (A) to the extent that the aggregate amount of Capital Lease Obligations incurred by the Borrower or any Subsidiary in any Fiscal Year of the Borrower pursuant to this Section 6.01(j) is less than the amount permitted for such Fiscal Year, the amount of such difference may be carried forward and used to incur Capital Lease Obligations in the immediately following Fiscal Year and (B) the Borrower and the Subsidiaries are permitted to incur an aggregate amount of Capital Lease Obligations in any Fiscal Year of the Borrower in excess of the amount otherwise permitted to be made for such Fiscal Year pursuant to this Section 6.01(j), provided that such excess amount used to incur Capital Lease Obligations in any such Fiscal Year in reliance on this Section 6.01(j) shall not exceed $25,000,000 and shall reduce on a dollar-for-dollar basis the aggregate amount of Capital Lease Obligations to be incurred pursuant to Section 6.01(j) in the immediately succeeding Fiscal Year;
(k) Capital Lease Obligations or other obligations or deferrals attributable to capital spending or other funds made available by food, beverage and packaging suppliers in connection with incentive arrangements;
(l) other unsecured Indebtedness of the Borrower or any Subsidiary Loan Party, in an aggregate principal amount that at the time of, and after giving effect to, the incurrence thereof, would not exceed $200,000,000;
(m) Indebtedness of the Borrower and the Subsidiary Loan Parties pursuant to (i) the Secured Notes in an aggregate principal amount that is not in excess of $600,000,000 and (ii) any Permitted Refinancing Indebtedness incurred to Refinance any such Indebtedness;
(n) Guarantees 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, (i) by the Borrower or any Subsidiary Loan Party of its Subsidiaries Indebtedness otherwise permitted hereunder of any Subsidiary that is not the Borrower or Controlled JV Subsidiaries a Subsidiary Loan Party to the extent such Guarantees are permitted by Section 6.04 (other than Section 6.04(s)), and (ii) 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 Section 6.01(n) 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;
(o) 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 (i) 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 or (ii) any such Indebtedness that would be required to be reflected on a consolidated balance sheet of the Borrower in accordance with GAAP;
(p) Indebtedness in respect of letters of credit, bank guarantees, bankers’ acceptances, 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;
(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 (i) the financing of insurance premiums or created(ii) take-or-pay obligations contained in supply arrangements, or relating to obligations or liability incurredin each case, in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) other 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary Loan Party that is unsecured or Controlled JV Subsidiarythat is secured by Second-Priority Liens or Junior Liens 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, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade incurrence or improvement assumption of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i) Indebtedness, the Borrower shall be without recourse in Pro Forma Compliance and the Total Leverage Ratio on a Pro Forma Basis shall not be greater than 0.50x less than the Total Leverage Ratio on the Closing Date to any Loan Parties 1.0 and (ii) any Permitted Refinancing Indebtedness in respect thereof;
(t) Indebtedness of Subsidiaries that are not Subsidiary Loan Party Parties in an aggregate amount not to exceed at any time not to exceed outstanding $10,000,000, incurred 50,000,000;
(u) unsecured Indebtedness in respect of obligations of the ordinary course of business not more than 180 days before or after 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 to pay the deferred purchase price of goods or Controlled JV Subsidiaryservices or progress payments in connection with such goods and services; provided, that such obligations are incurred in order to finance connection with open accounts extended by suppliers on customary trade terms (which require that all such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement payments be made within 90 days after the incurrence of such fixed or capital asset;
(jthe related obligations) 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 thereofin connection with the borrowing of money or any Swap Agreements;
(kv) Indebtedness representing deferred compensation to employees of the Borrower or any Subsidiary incurred in the ordinary course of business;
(w) Indebtedness of the Borrower and the Subsidiaries incurred under overdraft facilities and similar cash management arrangements (including, but not limited to, intraday, ACH and purchasing card/T&E services) extended by one or more financial institutions reasonably acceptable to the ERF Program Administrative Agent or by one or more of the Lenders or their Affiliates and (in an aggregate amount at any time not to exceed $100,000,000 each case) established for the Borrower’s and the Subsidiaries’ ordinary course of operations;
(or such other increased amount as may be approved x) Indebtedness consisting of Indebtedness issued by the Required LendersBorrower 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 or any Parent Entity permitted by Section 6.06(c);
(ly) without duplication 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 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 Investments permitted hereunder;
(mz) (i) Guarantees by a Loan Party of Indebtedness of Property-Level Subsidiaries the Borrower or any Subsidiary to any joint venture (regardless of the extent consisting form of Guarantees legal entity) that do is not provide any greater recourse to the applicable Loan Party than the Mortgage Recourse Carve-Outs; provided that such Guarantees are entered into 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 and having a term not in excess of 364 days (ii) Guarantees by Controlled JV Subsidiaries inclusive of any rollovers or Subsidiaries that do not constitute Loan Parties in respect extensions of Indebtedness otherwise permitted hereunderterms);
(naa) unsecured Indebtedness representing deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of the Loan Parties and/or Borrower or any of their respective its Subsidiaries consisting of guarantees of Indebtedness of a franchisee incurred to finance a remodeling, construction or purchase of a retail unit of such franchisee or capital expenditures of such franchisee (“Franchisee Construction Debt”); provided, that the amount of the obligations of the Borrower and Controlled JV its Subsidiaries under or with respect to such guarantees shall not exceed $40,000,000 in the ordinary course aggregate outstanding at any time;
(bb) unsecured Indebtedness of businessthe Borrower or any of its Subsidiaries owing to former franchisees and representing the deferred purchase price (or a deferred portion of such purchase price) payable by the Borrower or such Subsidiary to such former franchisee in connection with the purchase by the Borrower or such Subsidiary of one or more retail outlets from such former franchisee in an aggregate principal amount for all such Indebtedness not to exceed $5,000,000 at any one time outstanding; and
(occ) 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 (aa) 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 ordinary course case of business under performancesuch Indebtedness incurred (in respect of term Indebtedness) or committed (in respect of revolving Indebtedness) after the Closing Date, surety, statutory and appeal bonds. In furtherance on the date that such Indebtedness was incurred (in respect of the foregoing, no Property-Level Subsidiary shall create, incur, assume term Indebtedness) or suffer committed (in respect of revolving Indebtedness); provided that if such Indebtedness is incurred to exist any refinance other Indebtedness that is recourse to any Loan Party, denominated in a currency other than Mortgage Recourse CarveDollars (or in a different currency from the Indebtedness being refinanced), and such refinancing would cause the applicable Dollar-Outsdenominated 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.
Appears in 1 contract
Indebtedness. CreateLoan Parties shall not, and shall not permit any Subsidiary to, incur, create, assume or suffer permit to exist exist, directly or indirectly, any Indebtedness other than the followingIndebtedness, except:
(a) Indebtedness existing on the Loans date hereof and Obligationsset forth on Schedule 6.01(a) and Permitted Refinancing Indebtedness in respect thereof;
(b) Mortgage Indebtedness as of created hereunder and under 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 thereofother Loan Documents;
(c) Monthly payment, installment or financing plans for intercompany Indebtedness of Loan Parties and the payment of insurance policy premiumsSubsidiaries to the extent permitted by Section 6.04(c);
(d) Indebtedness arising from (i) of any agreement providing for indemnification, adjustment of purchase price Loan Party 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 Subsidiary incurred to financefinance the acquisition, construction, improvement 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 repair of any Person that owns a Hotel Propertyfixed or capital assets, not to exceed 70% of the fair market value (determined as of the date of entry into the agreement for such acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings Refinancing Indebtedness in respect thereof; provided that the outstanding aggregate principal amount of Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal amount of all Capital Lease Obligations incurred pursuant to Section 6.01(e), shall not exceed at any time $30,000,000;
(e) Capital Lease Obligations in an outstanding aggregate principal amount, when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 6.01(d), not in excess of a Loan Party to at any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agenttime $30,000,000;
(f) Indebtedness under performance bonds, bid bonds, appeal bonds, surety bonds, restoration bonds, performance and completion guarantees and similar obligations (other than in respect of Banking Services;
(gother Indebtedness) trade payables and or with respect to workers’ compensation claims, or obligations in respect of letters of credit, bank guarantees or similar current obligations to a trade creditor instruments related thereto, in each case incurred in the ordinary course of business and not evidenced by a notereimbursement obligations in respect of any of the foregoing;
(g) [intentionally omitted];
(h) Indebtedness incurred of any Person that becomes a Subsidiary after the date hereof or Indebtedness secured by a an asset prior to the acquisition of such asset by any Loan Party or any Subsidiary after the date hereof and any Permitted Refinancing Indebtedness in respect thereof; provided that (i) such Indebtedness initially exists at the time such Person becomes a Subsidiary or such asset is acquired and is not created in contemplation of or in connection with such Person becoming a Subsidiary or such asset being acquired, and (ii) the aggregate principal amount of Indebtedness permitted by this Section 6.01(h) shall not exceed at any time outstanding the greater of (x) $10,000,000 and (y) 5.0% of Consolidated Total Assets;
(i) Indebtedness under Hedging Obligations under Permitted Hedging Agreements, in each case entered into in the ordinary course of business and not for speculative purposes or taking a “market view”; provided that, if such Hedging Obligations relate to interest rates, (i) such Hedging Obligations relate to payment obligations on Indebtedness otherwise permitted to be incurred by the Loan Documents and (ii) the notional principal amount of such 123 Hedging Obligations at the time incurred does not exceed the principal amount of the Indebtedness to which such Hedging Obligations relate;
(j) [intentionally omitted];
(k) Guarantees by (i) any Loan Party of Indebtedness of any other Loan Party and (ii) any Subsidiary of any Loan Party of Indebtedness of any Loan Party or any other Subsidiary, in each case, of Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 (other than paragraphs (a), (h) and (l) of this Section 6.01); provided that (A) Guarantees by any Loan Party of Indebtedness of any Subsidiary which is not a Loan Party shall be subject to compliance with Sections 6.04(a) and 6.04(c), (B) if a Subsidiary which is not a Loan Party provides a Guarantee of Indebtedness of a Loan Party in accordance with this paragraph (k), then Loan Parties will cause such Subsidiary to Guarantee the Obligations on terms substantially similar to those set forth in Article IV of the Guarantee and Collateral Agreement, and (C) if the Indebtedness to be Guaranteed is subordinated to the Obligations, then the Guarantees permitted under this paragraph (k) shall be subordinated to the Obligations of Loan Parties to the same extent and on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations;
(l) Indebtedness consisting of promissory notes issued by Loan Parties or any Subsidiary (or contractual obligations of Loan Parties pursuant to a shareholders or similar incentive or benefits agreement of Loan Parties) to employees, officers or directors (or former employees, officers or directors) of Loan Parties or any Subsidiary, or any family member of, or trust or other entity for the benefit of, any of the foregoing persons (including any voting trust or limited partnership pursuant to which such Equity Interests have been transferred solely for the benefit of the foregoing persons and their heirs), to (i) purchase or redeem Equity Interests owned by or (ii) make payments to, such employees, officers or directors or any family member of, or trust or other entity for the benefit of, any of the foregoing persons, pursuant to and in accordance with an option, appreciation right or similar equity incentive, equity based incentive or management incentive plan, in each case, approved by the Board of Directors of the applicable Loan Party or Subsidiary, or in connection with the death or disability of such employees, officers or directors; provided that the aggregate principal amount of such promissory notes (or contractual obligations of Loan Parties pursuant to a shareholders or similar incentive or benefits agreement of Loan Parties) shall not exceed $500,000 at any time outstanding;
(m) Indebtedness in respect of netting services, automatic clearinghouse arrangements, employee credit card or purchase card programs, controlled disbursement, return items, interstate depository network services, dealer incentive, supplier finance or similar programs, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and, in each case, in the ordinary course of business and arrangements otherwise in connection with cash management and deposit accounts and similar arrangements in the ordinary course of business and any Guarantees thereof or 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, so long as such Indebtedness is extinguished within 10 Business Days of its Subsidiaries incurrence; 124
(n) Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(o) Indebtedness of any Loan Party or Controlled JV Subsidiaries any Subsidiary that may be deemed to exist in connection with agreements providing for indemnification, purchase price adjustments, earn-outs and similar obligations in connection with acquisitions or sales of assets and/or businesses permitted under this Agreement;
(p) reimbursement obligations in respect of letters of credit, bank guarantees, bankers’ acceptances, warehouse receipts or similar instruments issued or createdcreated for the account of any Loan Party in the ordinary course of business in an aggregate amount not to exceed $5,000,000;
(q) Guarantees by (i) any Loan Party or any Subsidiary of obligations of any other Loan Party in respect of operating lease agreements and of the obligations of suppliers, or relating to obligations or liability incurredcustomers, franchisees and licensees of any Loan Party in the ordinary course of business, including and (ii) any Subsidiary which is not a Loan Party of obligations of any other Subsidiary which is not a Loan Party in respect of workers compensation claimsoperating lease agreements and of the obligations of suppliers, healthcustomers, 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) franchisees and licensees of any Subsidiary or Consolidated JV Subsidiary of the Borrower that which is not a Loan Party in the ordinary course of business not more than 180 days before or after business;
(r) Indebtedness consisting of the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement financing of a fixed or capital asset incurred by insurance premiums so long as the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement aggregate amount of such fixed or capital asset; provided that any Indebtedness incurred under this Section 7.02(i)(i) is not in excess of the amount of the unpaid cost of, and shall be without recourse incurred only to any Loan Parties defer the cost of, such insurance for the year in which such Indebtedness is incurred and (ii) any Loan Party in an aggregate amount at any time not to exceed $10,000,000, such Indebtedness is outstanding only during such year and is incurred in the ordinary course of business not more than 180 days before business;
(s) to the extent constituting Indebtedness, take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business;
(t) to the extent constituting Indebtedness, deferred compensation, severance, pension, and health and welfare retirement benefits or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement equivalent to current and former employees of a fixed or capital asset incurred by a Loan Party, Borrower Parties or any Subsidiary existing on the date hereof or Controlled JV Subsidiary, in 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 thereafter incurred in the ordinary course of business and not for speculative purposes and guarantees thereofbusiness;
(ku) 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)[intentionally omitted];
(lv) without duplication of any other Indebtedness, all premiums (if any), interest Subordinated Indebtedness (including post-petition interest and payment in kind interestany Qualified Equity Cure Subordinated Debt), accretion or amortization of original issue discount, fees, expenses and charges with respect to ; and
(w) other unsecured 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 in an aggregate principal amount not to the extent consisting of Guarantees that do not provide exceed $22,500,000 at 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-Outstime outstanding.
Appears in 1 contract
Sources: Credit Agreement (Smart Sand, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and Obligations[Reserved];
(b) Mortgage Indebtedness as created hereunder or under the other Loan Documents, Credit Agreement Refinancing Indebtedness, Indebtedness created under Incremental Facilities and any unsecured Indebtedness constituting Permitted Refinancing Indebtedness incurred to Refinance any 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 thereofforegoing;
(c) Monthly payment, installment or financing plans for the payment of insurance policy premiumsIndebtedness pursuant to Hedge Agreements;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to Borrower Holdco or self-insurance any of its Subsidiaries pursuant to reimbursement or other indemnification obligations to such person, in each case, in the ordinary course of business; provided that upon the incurrence of Indebtedness with respect to reimbursement-type reimbursement obligations regarding workers workers’ compensation claims, such obligations shall be reimbursed not later than 30 days following such incurrence;
(e) intercompany Indebtedness between or among Borrower Holdco and any of its Subsidiaries; provided that Indebtedness owing by any Subsidiary of Borrower Holdco that is not a Subsidiary Loan Party to Borrower Holdco, the Borrower or any other Subsidiary Loan Party (together with investments in non-Subsidiary Loan Parties permitted under Section 6.04(b)) shall not exceed the greater of (a) $30.0 million and (b) 2.25% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04 at any time outstanding and, in the case of Indebtedness owing by the Borrower or any other Subsidiary Loan Party to any Subsidiary that is not a Subsidiary Loan Party, to be subordinated to the Obligations pursuant to customary subordination provisions;
(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, including those incurred to secure health, safety and environmental obligations in the ordinary course of business;
(g) (i) to the extent constituting Indebtedness, Cash Management Obligations and other Indebtedness in respect of Cash Management Services in the ordinary course of business, (ii) other Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness (other than credit or purchase cards) is extinguished within ten Business Days after notification is received by the Borrower of its incurrence, and (iii) any other cash management services entered in the ordinary course of business;
(i) Indebtedness incurred or assumed in connection with Permitted Business Acquisitions and (including Capitalized Lease Obligationsii) any Permitted Refinancing Indebtedness incurred by to Refinance such Indebtedness; provided that, in each case, (A) no Event of Default shall have occurred and be continuing immediately before such Permitted Business Acquisition or would result immediately after giving pro forma effect to such Permitted Business Acquisition and any related transactions, (B) the Borrower shall be able to incur $1 of Ratio Debt, (C)(1) if such Indebtedness incurred or assumed is Consolidated First Lien Net Debt, the Senior Secured First Lien Net Leverage Ratio shall not exceed the Closing Date Senior Secured First Lien Net Leverage Ratio and (2) if such Indebtedness incurred or assumed is secured Indebtedness other than Consolidated First Lien Net Debt, the Senior Secured Net Leverage Ratio shall not exceed the Closing Date Senior Secured Net Leverage Ratio, in each case, immediately after giving pro forma effect to such incurrence or assumption of Indebtedness, (D) such Indebtedness shall mature at least 91 days after the Maturity Date and (E) such Indebtedness shall not be secured with a Lien on ABL Priority Collateral that is not subordinated to the Liens securing the Obligations pursuant to the ABL/Term Intercreditor Agreement or another intercreditor agreement substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement;
(i) Capital Lease Obligations, Indebtedness with respect to mortgage financings and purchase money Indebtedness in an aggregate principal amount not to exceed the greater of (i) $35.0 million and (ii) 2.75% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such Indebtedness is incurred for which Required Financial Statements have been delivered pursuant to Section 5.04, at any Subsidiary time outstanding, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness; provided that such Indebtedness shall be incurred within 270 days after the acquisition, lease or improvement of the property that is the subject of such Indebtedness;
(j) Capital Lease Obligations in respect of any Sale and Lease-Back Transaction that is permitted under Section 6.03, and any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness;
(k) other Indebtedness; provided that the aggregate principal amount of Indebtedness incurred pursuant to this clause (k) shall not exceed the greater of (i) $30.0 million and (ii) 2.25% of Consolidated JV Subsidiary Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04, at any time outstanding;
(l) Indebtedness consisting of (i) Term Loan Obligations in an aggregate principal amount not in excess of (A) $525.0 million plus (B) the aggregate principal amount of any Incremental Term Loans or Incremental Equivalent First Lien Term Debt, in each case permitted by the Term Loan Credit Agreement as in effect on the Closing Date, (ii) Second Lien Obligations in an aggregate principal amount not in excess of (A) $195.0 million plus (B) the aggregate principal amount of any Incremental Second Lien Term Loans or Incremental Equivalent Second Lien Term Debt, in each case, permitted, by the Second Lien Term Loan Credit Agreement as in effect on the Closing Date, and (iii) Permitted Refinancing Indebtedness incurred to Refinance any of the foregoing Indebtedness;
(m) Guarantees (i) of the Indebtedness of the Borrower described in clause (l) of this Section 6.01 so long as any Liens securing the Guarantee of the Term Loan Obligations, Second Lien Obligations or any Permitted Refinancing Indebtedness in respect thereof are subject to the ABL/Term Loan Intercreditor Agreement or another intercreditor agreement substantially consistent with and no less favorable to the Lenders in any material respect than the ABL/Term Loan Intercreditor Agreement, (ii) of any Indebtedness of Borrower Holdco or any of its Subsidiaries permitted to be incurred under this Agreement, (iii) of Indebtedness otherwise permitted hereunder of Borrower Holdco or any of its Subsidiaries that is not a Subsidiary Loan Party to the extent permitted by Section 6.04 (other than Section 6.04(v)), (iv) by any Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary that is not a Loan Party and (v) of Indebtedness of Foreign Subsidiaries incurred for working capital purposes in the ordinary course of business not more on ordinary business terms so long as such Indebtedness is permitted to be incurred under Section 6.01(r) to the extent permitted by 6.04 (other than 180 days before or after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetSection 6.04(v)); provided that Guarantees by Borrower Holdco or any other Loan Party under this clause (m) of any Indebtedness incurred under this Section 7.02(i)(i) of a person that is subordinated to other Indebtedness of such person shall be without recourse expressly subordinated to the Obligations to at least the same extent as such underlying Indebtedness is subordinated;
(n) Indebtedness arising from agreements of Borrower Holdco or any Loan Parties of its Subsidiaries 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 Subsidiaries not prohibited by this Agreement, other than Guarantees of Indebtedness incurred by any person acquiring all or any portion of such business, assets or Subsidiaries for the purpose of financing any such Permitted Business Acquisition;
(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) other Indebtedness that matures no earlier than 91 days after the Maturity Date, so long as, immediately after giving pro forma effect to the issuance, incurrence or assumption of such Indebtedness, the Interest Coverage Ratio is 2.00 to 1.00 or greater (“Ratio Debt”) and (ii) any Loan Party in an Permitted Refinancing Indebtedness incurred to Refinance such Ratio Debt;
(r) Indebtedness of Foreign Subsidiaries; provided that the aggregate principal amount of Indebtedness incurred pursuant to this clause (r) shall not exceed the greater of (i) $20.0 million and (ii) 1.75% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04, at any time not to exceed $10,000,000, incurred in the ordinary course of business not more than 180 days before or after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetoutstanding;
(js) unsecured Indebtedness in respect of Swap Contracts designed obligations to hedge against pay the Borrower’s deferred purchase price of goods or any Subsidiary’s exposure to interest rates, foreign exchange rates services or commodities pricing risks progress payments in connection with such goods and services so long as 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 for speculative purposes and guarantees thereofin connection with the borrowing of money or any Hedge Agreements;
(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;
(nt) 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 employees incurred in the ordinary course of business;
(u) Indebtedness incurred on behalf of, or representing Guarantees of Indebtedness of, joint ventures; provided that the aggregate principal amount of Indebtedness incurred pursuant to this clause (u) shall not exceed the greater of (i) $25.0 million and (ii) 2.0% of Consolidated Total Assets as of the end of the fiscal quarter immediately prior to the date of such incurrence for which Required Financial Statements have been delivered pursuant to Section 5.04, at any time outstanding;
(v) Indebtedness issued 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 or any Parent Entity permitted by Section 6.06;
(w) Indebtedness consisting of obligations under deferred compensation or other similar arrangements incurred by Borrower Holdco or any of its Subsidiaries in connection with the Transactions or Permitted Business Acquisitions or any other Investment permitted hereunder;
(x) unsecured Indebtedness in a principal amount not to exceed an amount equal to the Net Proceeds received from the issuance or sale of Equity Interests of Borrower Holdco or any of its Subsidiaries and any cash or cash equivalents consisting of a capital contribution received from equityholders of Borrower Holdco or any of its Subsidiaries (other than from Borrower Holdco, the Borrower or any other Subsidiary or in respect of Disqualified Stock or any equity contributed as a Cure Right) so long as such Indebtedness matures at least 91 days after the Maturity Date; and
(oy) Indebtedness incurred all premium (if any, including tender premiums), defeasance costs, interest (including post petition interest), fees, expenses, charges and additional or contingent interest on obligations described in the ordinary course clauses (a) through (x) 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-Outsthis Section 6.01.
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Sources: Revolving Credit Agreement (Smart & Final Stores, Inc.)
Indebtedness. CreateIncur, incurcreate, assume or suffer permit to exist any Indebtedness other than the followingIndebtedness, except:
(a) (i) Indebtedness existing or committed on the Loans Closing Date (provided, that any such Indebtedness that is (x) not intercompany Indebtedness and Obligations(y) in excess of $5,000,000 shall be set forth on Schedule 6.01) and (ii) any Permitted Refinancing Indebtedness incurred to Refinance such Indebtedness (other than intercompany Indebtedness Refinanced with Indebtedness owed to a person not affiliated with the Borrower or any Subsidiary);
(b) Mortgage (i) Indebtedness as of created hereunder (including pursuant to Section 2.21) and under the date hereof other Loan Documents and listed on Schedule 5.07(b), any renewals, amendments, modifications or extensions thereof that do not increase the principal amount thereof, and (ii) any Permitted Refinancings thereofRefinancing Indebtedness incurred to Refinance such Indebtedness;
(c) Monthly payment, installment Indebtedness of the Borrower or financing plans any Subsidiary pursuant to Hedging Agreements entered into for the payment of insurance policy premiumsnon-speculative purposes;
(d) Indebtedness arising from (i) any agreement providing for indemnification, adjustment of purchase price or similar obligations owed to (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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent;
(f) Indebtedness in respect of Banking Services;
(g) trade payables and similar 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 any of its Subsidiaries or Controlled JV Subsidiaries in respect of letters of credit, credit or bank guarantees, bankers’ acceptances, warehouse receipts guarantees or similar instruments issued or created, or relating to obligations or liability incurred, in for the ordinary course of business, including in respect of workers compensation claimsbenefit of) any person providing workers’ compensation, health, disability or other employee benefits or property, casualty or liability insurance to the Borrower or self-insurance 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 any Subsidiary of the Borrower to the Borrower or any other Subsidiary of the Borrower; provided, that 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;
(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 Indebtedness with respect to reimbursement-type obligations regarding workers compensation claimsfinancial 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 Capitalized Lease Obligationsa Permitted Business Acquisition or other permitted Investment), 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 not greater than the greater of (I) 3.00 to 1.00 and (II) 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 not greater than the greater of (I) 4.00 to 1.00 and (II) the Net Secured Leverage Ratio in effect immediately prior thereto, (y) in the case of any Indebtedness that is unsecured or secured by assets that are not Collateral, (I) 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 not less than the lesser of (A) 2.00 to 1.00 or (B) 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 or consolidation, the incurrence or assumption of such Indebtedness and the use of proceeds thereof and any related transactions is not greater than the greater of (A) 5.00 to 1.00 and (B) the Net Total Leverage 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), 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 $62,500,000 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) 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) any Subsidiary (i) Financing Lease Obligations, purchase money 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 after the acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset mortgage financings and other Indebtedness incurred by the Borrower or any Subsidiary prior to or Controlled JV Subsidiarywithin 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, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after the acquisition, construction, repair, replacementreplacement or improvement, 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 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 principal amount at any time not that immediately after giving effect to exceed $100,000,000 (or the incurrence of such other increased Indebtedness and the use of proceeds thereof, together with the aggregate principal amount as may be approved by the Required Lenders);
(l) without duplication of any other Indebtedness, all premiums (if anyIndebtedness outstanding pursuant to this Section 6.01(i)(i), interest (including post-petition interest would not exceed the greater of $75,000,000 and payment in kind interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of 0.30 times the Loan Parties and their respective Subsidiaries and Controlled JV Subsidiaries permitted hereunder;
(m) (i) Guarantees by EBITDA calculated on 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.Pro Forma Basis for the
Appears in 1 contract
Indebtedness. Create, issue, incur, assume assume, become liable in respect of or suffer to exist any Indebtedness other than the followingIndebtedness, except:
(a) the Loans and ObligationsIndebtedness of any Loan Party pursuant to any Loan Document;
(b) Mortgage Indebtedness as of any Group Member for Bank Services provided by any Lender or any Affiliate thereof;
(c) Indebtedness constituting a Permitted Intercompany Advance;
(d) Guarantee Obligations constituting a Permitted Intercompany Advance;
(e) Indebtedness outstanding on the date hereof and listed on Schedule 5.07(b)7.2(e) and any refinancings, any renewalsrefundings, amendments, modifications renewals or extensions thereof that do not increase (without shortening the maturity thereof or increasing 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 (i) any 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 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 acquisition or Investment) of such Hotel Property (or part of a Hotel Property) and any Permitted Refinancings thereof;
(e) Indebtedness of a Loan Party to any other Loan Party and/or any Subsidiary or Controlled JV Subsidiary, and Indebtedness of 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 prior repayment in full of the Obligations on terms reasonably satisfactory to the Administrative Agent);
(f) Indebtedness (including, without limitation, Capital Lease Obligations) secured by Liens permitted by Section 7.3(g) in respect of Banking Servicesan aggregate principal amount not to exceed $1,000,000 at any one time outstanding and any refinancings, refundings, renewals or extensions thereof (without shortening the maturity thereof or increasing the principal amount thereof);
(g) trade payables and similar current obligations to a trade creditor incurred in the ordinary course of business and not evidenced by a noteSurety Indebtedness;
(h) Indebtedness incurred by a Loan Party or any arising in connection with endorsement of its Subsidiaries or Controlled 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, for deposit in the ordinary course of business, including in respect of workers compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers compensation claims;
(i) Indebtedness to the extent constituting Investments permitted under Sections 7.7(a) through (including Capitalized Lease Obligations) incurred by f), (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 after the acquisitiong), construction(j), repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of a fixed or capital asset incurred by the Borrower or any Subsidiary or Controlled JV Subsidiary, in order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or 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 after 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 order to finance such acquisition, construction, repair, replacement, lease, expansion, development, installation, relocation, renewal, maintenance, upgrade or improvement of such fixed or capital assetn);
(j) Indebtedness under Swap Agreements permitted under Section 7.11, the terms of which are approved in respect of Swap Contracts designed to hedge against writing by the Borrower’s or any Subsidiary’s exposure to interest rates, foreign exchange rates or commodities pricing risks incurred Administrative Agent in the ordinary course of business and not for speculative purposes and guarantees thereofits Permitted Discretion;
(ki) Indebtedness incurred under purchase price adjustments in connection with the ERF Program Recapitalization Agreement and/or any Permitted Acquisition, (ii) indemnity payments in an connection with the Recapitalization Agreement and/or any Permitted Acquisition, (iii) Earn-Out Obligations consistent with acquisitions of such nature and which are not disguised installment payments of the initial purchase price, (iv) Permitted Seller Debt and (v) any DP Amount and Accrued DP Interest; provided that in each case, (A) no Default or Event of Default has occurred and is continuing both immediately before and immediately after giving effect to the incurrence of such Indebtedness, (B) at the time of incurrence thereof, the Loan Parties shall be in pro forma compliance with the covenants and agreements set forth in this Agreement, it being understood that such covenants shall be determined on a pro forma basis after giving effect to the incurrence of such Indebtedness, and (C) the sum of the amounts pursuant to Section 7.2(k)(i)(1), (k)(ii), (k)(iii), (k)(iv) and (k)(v) plus the initial purchase price and all other consideration paid in connection with the Permitted Acquisitions, does not in the aggregate amount at any time not to exceed $100,000,000 (or such other increased amount as may be approved the limit on consideration imposed by the Required LendersSection 7.7(m);
(l) other unsecured subordinated Indebtedness approved in writing by the Required Lenders; provided, however, that (i) no Default or Event of Default shall exist immediately prior to the incurrence of such subordinated Indebtedness or would immediately result therefrom, and (ii) such subordinated Indebtedness is subject to a subordination agreement or other subordination terms acceptable to the Required Lenders (which shall include, without duplication of any other Indebtednesslimitation, all premiums (if anyunlimited payment blockage and standstill provisions), 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 Indebtedness incurred in connection with the financing of insurance premiums and secured, if at all, 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 liens permitted hereunderunder Section 7.3(r);
(n) Indebtedness representing deferred compensation to current arising from or former directorsthe honoring by a bank or other financial institution of a check, officers, employees, members draft or similar instrument inadvertently (except in the case of management, managers, and consultants of the Loan Parties and/or any of their respective Subsidiaries and Controlled JV Subsidiaries daylight over drafts) drawn against insufficient funds in the ordinary course of business; and;
(o) Indebtedness incurred in respect of netting services or overdraft protection or otherwise in connection with deposit or securities accounts in the ordinary course of business under performancebusiness;
(p) unsecured Indebtedness of Borrower and its Subsidiaries owing to employees, suretyformer employees, statutory and appeal bonds. In furtherance officers, former officers, directors, former directors (or any spouses, ex spouses, or estates of an of the foregoing, no Property-Level Subsidiary shall create, incur, assume or suffer to exist any Indebtedness that is recourse ) in connection with the repurchase of Capital Stock of Borrower issued to any Loan Partyof the aforementioned employees, other former employees, officers, former officers, directors (or any spouses, ex spouses, or estates of an of the foregoing) not to exceed $2,000,000 at any time outstanding;
(q) Other than Mortgage Recourse Carve-Outsfunded bank Indebtedness, Indebtedness of any Person that becomes a Subsidiary after the Closing Date that exists at the time such Person becomes a Subsidiary and is not created in contemplation of or in connection with such Person becoming a Subsidiary; provided that such Indebtedness shall not in the aggregate exceed $1,000,000 at any time outstanding;
(r) Indebtedness of any Subsidiary of the Borrower organized under the laws of Germany incurred in respect of any part time worker arrangements falling under the German Old Age Employees Part Time Act (Altersteilzeitgesetz); and
(s) additional Indebtedness of the Group Members not described above in this Section 7.2 in an aggregate principal amount not to exceed $20,000,000 at any one time outstanding.
Appears in 1 contract